NUCOR CORPORATION,

Plaintiff,

v.

UNITED STATES,

Defendant.

Slip Op. 07-144

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Timothy C. Stanceu, Judge

Court No. 07-00174

OPINION

[Denying the motions to intervene of right of Stelco Inc., Dofasco Inc., Sorevco Inc., Do Sol

Galva Ltd., Mittal Steel USA Inc., and United States Steel Corporation, denying plaintiff’s

motion for a preliminary injunction, and granting the motion of defendant to dismiss this action

for lack of subject matter jurisdiction]

Dated: September 26, 2007

Wiley Rein LLP (Timothy C. Brightbill and Alan H. Price) for plaintiff Nucor

Corporation.

Vinson & Elkins LLP (Christopher Dunn and David T. Hardin) for proposed plaintiffintervenor Stelco Inc.

Hunton & Williams LLP (William Silverman, Douglas J. Heffner, and Richard P. Ferrin)

for proposed plaintiff-intervenors Dofasco Inc., Sorevco Inc., and Do Sol Galva Ltd.

Stewart and Stewart (Terence P. Stewart and Eric P. Salonen) for proposed plaintiffintervenor Mittal Steel USA Inc.

Skadden, Arps, Slate, Meagher and Flom LLP (Robert E. Lighthizer, John J. Mangan,

and Jeffrey D. Gerrish) for proposed plaintiff-intervenor United States Steel Corporation.

Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.

McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice (Richard P. Schroeder and David S. Silverbrand); Mark B. Lehnardt,

Office of Chief Counsel for Import Administration, United States Department of Commerce, of

counsel, for defendant.
Court No. 07-00174 Page 2

Stanceu, Judge: Plaintiff Nucor Corporation (“Nucor”), a domestic producer of steel

products, initiated this action under 19 U.S.C. § 1516a (2000) to contest a final determination

(“Final Results”) issued by the International Trade Administration, United States Department of

Commerce (“Commerce” or the “Department”) in an administrative review of an antidumping

duty order on certain corrosion-resistant carbon steel flat products from Canada. See Certain

Corrosion-Resistant Carbon Steel Flat Products from Canada: Final Results of Antidumping

Duty Administrative Review, 72 Fed. Reg. 12,758 (Mar. 19, 2007). 

Before the court are motions to intervene as a matter of right on behalf of Stelco Inc.

(“Stelco”), Dofasco Inc. (“Dofasco”), Sorevco Inc. (“Sorevco”), Do Sol Galva Ltd. (“Do Sol

Galva”), Mittal Steel USA Inc. (“Mittal Steel USA”), and United States Steel Corporation (“U.S.

Steel”) (collectively “proposed plaintiff-intervenors”). Plaintiff Nucor moves for a preliminary

injunction to prevent liquidation by Customs of the entries of certain corrosion-resistant carbon

steel flat products (“subject merchandise”) from Canada manufactured by producers Stelco,

Dofasco, Sorevco, and Do Sol Galva. Defendant United States moves to dismiss this action

pursuant to USCIT Rule 12(b)(1) for lack of jurisdiction, alleging that Nucor did not participate

as a party in the administrative review that concluded in the issuance of the Final Results and

therefore lacks standing. 

Because Nucor did not participate in the Department’s proceeding culminating in the

Final Results to the extent necessary to qualify as a party to that proceeding, the court concludes

that Nucor lacked standing to bring a cause of action under 19 U.S.C. § 1516a. Accordingly, the

court must deny Nucor’s motion for a preliminary injunction. Because intervention could not

cure the defect in subject matter jurisdiction caused by Nucor’s failure to establish standing to
Court No. 07-00174 Page 3

 Dofasco, Sorevco, and Do Sol Galva are plaintiffs in Dofasco Inc. v. United States,

1

Court No. 07-00135, in which is pleaded the same claim that Nucor attempts to assert in this

action.

bring its claim, the court also must deny the motions to intervene and grant the motion to dismiss

this action.

I. BACKGROUND

Nucor filed a summons on May 21, 2007, a complaint on June 20, 2007, and an amended

complaint on June 29, 2007. In the amended complaint, Nucor challenges as contrary to law the

Department’s rejection of the requests of certain parties for rescission of the administrative

review and the resulting continuation of that administrative review. Am. Compl. ¶ 6. Nucor

seeks a ruling holding the Final Results to be unsupported by substantial record evidence and

otherwise not in accordance with law and an order remanding the Final Results to Commerce for

redetermination. Id. at 3, REQ. FOR J. AND RELIEF ¶¶ 1-2.

On July 19 and 20, 2007, the six proposed plaintiff-intervenors moved for intervention as

a matter of right, all on the side of plaintiff Nucor. See 28 U.S.C. § 2631(j)(1)(B) (2000); USCIT

R. 24(a). In its motion, Stelco states that it is a Canadian producer and exporter of the subject

merchandise and that it fully participated in the administrative review. Mot. to Intervene As A

Matter of Right on the Side of Pl. 2 (“Stelco’s Mot. to Intervene”). In a joint motion filed

July 20, 2007, Dofasco, Sorevco, and Do Sol Galva state that they are Canadian producers of

subject merchandise and that they participated as respondents in the administrative review.1

Partial Consent Mot. to Intervene as of Right as Pl.-Intervenor ¶ 2 (“Dofasco, Sorevco, Do Sol

Galva Mot. to Intervene”). In its motion filed the same day, U.S. Steel states that it is a producer
Court No. 07-00174 Page 4

 On May 29, 2007, U.S. Steel was granted status as a plaintiff-intervenor and as a 2

defendant-intervenor in Dofasco Inc. v. United States, Court No. 07-00135.

of the domestic like product and that it participated in the administrative review. Mot. to

2

Intervene as of Right as Pl.-Intervenor ¶ 2 (“U.S. Steel Mot. to Intervene”). In its motion, also

filed July 20, 2007, Mittal Steel USA states that it is a domestic producer of corrosion-resistant

steel flat products and that it participated in the administrative review. Partial Consent Mot. of

Applicant Pl.-Intervenor Mittal Steel USA Inc. to Intervene as of Right 2 (“Mittal Steel USA

Mot. to Intervene”). Defendant United States did not consent to any of the motions to intervene. 

According to the motions of certain proposed plaintiff-intervenors, defendant refused to consent

on the ground that Nucor is not a proper party plaintiff and the court therefore lacks jurisdiction

over plaintiff’s claim. See Stelco’s Mot. to Intervene 1; Dofasco, Sorevco, Do Sol Galva Mot. to

Intervene ¶ 5; U.S. Steel Mot. to Intervene ¶ 5. On September 7, 2007, defendant submitted,

with a motion for leave to file out of time, a response in opposition to the intervention of Mittal

Steel USA, alleging that Mittal Steel USA was not a party to the proceeding below and therefore

does not qualify for intervention as a matter of right. Def.’s Resp. to Mittal Steel USA’s Mot. to

Intervene; see Mittal Steel USA Mot. to Intervene.

On July 20, 2007, Nucor moved for a preliminary injunction “to enjoin the liquidation of

any and all entries of certain corrosion-resistant carbon steel flat products from Canada

manufactured by Dofasco Inc., Sorevco Inc., Do Sol Galva Ltd., and Stelco Inc.” Mot. for

Prelim. Inj. 1. Nucor stated in support of its motion that it had obtained the consent of Stelco,
Court No. 07-00174 Page 5

 Nucor stated in its motion for a preliminary injunction that it had obtained the consent 3

of all proposed plaintiff-intervenors but does not state that it obtained the consent of Mittal Steel

USA. Mot. for Prelim. Inj. 2.

Dofasco, Sorevco, Do Sol Galva, and U.S. Steel to the entry of a preliminary injunction. Id. 3

at 2. On August 3, 2007, defendant, alleging that Nucor lacks standing, moved to dismiss this

action for lack of subject matter jurisdiction and opposed plaintiff’s motion for a preliminary

injunction. Def.’s Mot. to Dismiss and Opp’n to Pl.’s Mot. for a Prelim. Inj. 1 (“Def.’s Mot. to

Dismiss”).

II. DISCUSSION

A. Nucor Has Not Established Standing to Contest the Final Results

To contest the Final Results, Nucor must satisfy the requirements of 19 U.S.C.

§ 1516a(a), on which it relies for its cause of action, and 28 U.S.C. 2631(c), which governs

standing in suits brought before the Court of International Trade. See Am. Compl. ¶¶ 1, 3. 

Under 19 U.S.C. § 1516a(a)(2)(A), an action may be commenced by “an interested party who is a

party to the proceeding in connection with which the matter arises . . . .” 19 U.S.C.

§ 1516a(a)(2)(A). In parallel, 28 U.S.C. 2631(c) provides that “[a] civil action contesting a

determination listed in [19 U.S.C. § 1516a] may be commenced in the Court of International

Trade by any interested party who was a party to the proceeding in connection with which the

matter arose.” 28 U.S.C. 2631(c).

Nucor alleges in its amended complaint (and defendant does not contest) that Nucor is a

manufacturer of the domestic like product and therefore is an “interested party” within the

meaning of 19 U.S.C. § 1516a(f)(3) and § 1677(9)(C) (2000). Am. Compl. ¶ 3; see 19 U.S.C.

§ 1516a(f)(3) (defining “interested party” by reference to 19 U.S.C. § 1677(9)); 19 U.S.C.
Court No. 07-00174 Page 6

§ 1677(9)(C) (defining “interested party” to include “a manufacturer, producer, or wholesaler in

the United States of a domestic like product”). Nucor further alleges that it participated in the

administrative review “through actions including entering a notice of appearance, regularly

monitoring the status of the proceeding, and reviewing all of the documents that were submitted

or issued in the underlying proceeding.” Am. Compl. ¶ 3. In further support of its claim of

standing, Nucor states that “Plaintiff also participated in discussions (including telephone

conferences) with other parties regarding various issues including case strategy, case settlement,

and the parties’ decisions to withdraw their requests for administrative review, which Plaintiff

supported.” Id. In its opposition to the motion to dismiss, Nucor makes the additional argument

that Commerce implicitly recognized its status as a party to the proceeding by making available

to Nucor’s representatives the business proprietary information of other parties and the

Department’s preliminary calculations. Pl.’s Resp. to Def.’s Mot. to Dismiss 4-5. Based on the

various factual allegations in its amended complaint, Nucor seeks to invoke the court’s subject

matter jurisdiction under 28 U.S.C. § 1581(c) (2000), under which the Court of International

Trade is granted exclusive jurisdiction of any civil action commenced under 19 U.S.C. § 1516a. 

See 28 U.S.C. 1581(c).

Nucor has failed to allege facts from which the court could consider Nucor to qualify as a

“party to the proceeding” in connection with which the matter arose. 19 U.S.C. § 1516a(a)(2);

28 U.S.C. § 2631(c). The court concludes that Nucor’s claimed level of participation does not

satisfy any reasonable construction of the “party to the proceeding” requirement that Congress

imposed as a condition for obtaining judicial review.
Court No. 07-00174 Page 7

Although the term “party to the proceeding” is not defined by statute, the Department’s

regulations define the term as “any interested party that actively participates, through written

submissions of factual information or written argument, in a segment of a proceeding.”

19 C.F.R. § 351.102(b) (2006). Nucor acknowledges that it presented no written factual material

or written argument to the Department by admitting that “it did not make written submissions as

required under 19 C.F.R. § 351.102.” Pl.’s Resp. to Def.’s Mot. to Dismiss 5. However, because

the court must determine whether the subject matter jurisdiction provided by 28 U.S.C. § 1581(c)

attached to Nucor’s claim, Nucor’s acknowledgment that it did not satisfy the “written

submission” requirement of 19 C.F.R. § 351.102 does not fully resolve the standing issue

presented by this case.

Nucor’s argument for standing does not address the question of whether the definition of

“party to the proceeding” in the Department’s regulations, which requires active participation

through at least one written submission setting forth factual information or argument, could be

controlling if applied to resolve a fundamental question of the extent of the court’s jurisdiction. 

Nor does Nucor, although citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 843 (1984), address the question of whether 19 C.F.R. § 351.102 is a reasonable

construction of the statutory term that is entitled to the court’s deference when applied in this

jurisdictional context. See Pl.’s Resp. to Def.’s Mot. to Dismiss 4; Chevron, 467 U.S. at 843-44;

Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed. Cir. 2001). 

However, the court perceives no need to reach these questions in this case because the actions

Nucor alleges it took during the administrative review are insufficient to establish that 
Court No. 07-00174 Page 8

 Nucor does not indicate in its pleading what it stated in its notice of appearance or under 4

what regulatory provision it filed this notice. The court observes that 19 C.F.R. § 351.103(c)

allows interested parties to request to be included on the service list for a segment of a

proceeding. See 19 C.F.R. § 351.103(c).

Nucor was a party to the administrative review proceeding under any reasonable construction of

the term “party to the proceeding” as used in 19 U.S.C. § 1516a(a)(2)(A) and 28 U.S.C.

§ 2631(c).

From Nucor’s pleadings and submissions, the court must conclude that Nucor’s entire

correspondence with Commerce was limited to what it terms a “notice of appearance” and an

application to receive information under an administrative protective order (“APO”). Filing of

each of these documents does not itself constitute meaningful participation in the Department’s

proceeding; such filings are merely procedural steps that communicate nothing of substance on

any matter to be addressed in the administrative review.4

Nucor’s allegations that it engaged in certain other activities, i.e., that it monitored the

status of the proceeding and participated in case strategy sessions and settlement negotiations

with other parties to the review, do not remedy the deficiency in Nucor’s claim of standing. As

important as those activities may have been to Nucor at the time, they were distinct from actual

participation in the proceeding that Commerce was conducting.
Court No. 07-00174 Page 9

 Defendant cites certain legislative history of the Trade Agreements Act of 1979, which

5

generally equates party status with participation in the administrative proceeding. Def.’s Mot. to

Dismiss 4 (citing S. Rep. No. 96-249, at 249-51 (1979), reprinted in 1979 U.S.C.C.A.N.

381, 635-37). However, the parties have not directed the court to pertinent legislative history for

guidance on the question of whether Congress, in requiring a plaintiff to have been a party to the

administrative proceeding, intended a lower threshold of participation than that required by

19 C.F.R. § 351.102(b). The court’s own research has not uncovered any such legislative history.

The statutory scheme indicates that Congress intended to require, as a condition for

obtaining judicial review, some level of participation before the agency beyond the steps

identified by Nucor. The statutory scheme limits the scope of judicial review of the 5

Department’s determinations to the agency record. See 19 U.S.C. § 1516a(b); 28 U.S.C.

§ 2640(b) (2000). Because Nucor’s filings were limited to its notice of appearance and a request

for access to business proprietary information, the record in the administrative review would not

have been materially different had Nucor ignored the proceeding entirely. Additionally, the

statutory scheme provides that the court, in reviewing the agency’s decision on the record, shall

require a party contesting a determination to exhaust administrative remedies where appropriate. 

See 28 U.S.C. § 2637(d). Thus, in the normal instance, with only narrow exceptions, a party

challenging any aspect of a final Commerce determination first must have presented its

arguments to Commerce for decision during the administrative proceeding.

Congress specified that the party seeking standing to challenge a determination must have

been “a party to the proceeding” and not, for example, merely an “interested party,” as defined in

19 U.S.C. § 1677(9). Procedural steps such as a notice of appearance and an application to

receive business proprietary information under an APO are more in the nature of preparation for

participation than participation itself. Were the court to treat them as sufficient to confer
Court No. 07-00174 Page 10

standing, it would so weaken the “party to the proceeding” requirement as to render it practically

meaningless.

The court does not find merit in Nucor’s argument that Commerce implicitly

acknowledged Nucor’s party status in granting Nucor’s representatives access to business

proprietary information and disclosing preliminary calculations. In support of this argument,

Nucor points to 19 U.S.C. § 1677f(c)(1)(A) (2000), under which Commerce must “make all

business proprietary information presented to, or obtained by it, during a proceeding . . . available

to interested parties who are parties to the proceeding under a protective order . . . .” See Pl.’s

Resp. to Def.’s Mot. to Dismiss 4. Nucor points to 19 C.F.R. § 351.224(b) (2006), under which

regulation Commerce is to “disclose to a party to the proceeding calculations performed, if any,

in connection with a preliminary determination . . . .” See id. The plain language of 19 U.S.C.

§ 1677f(c)(1)(A) does not preclude Commerce from releasing business proprietary information to

a person’s qualified representatives under an APO prior to the person’s doing all that is required

to obtain status as a party to the proceeding. A person’s representatives, upon proper application,

may qualify to obtain proprietary information under an APO prior to the person’s making written

submissions of fact or argument. Indeed, it would seem impracticable for Commerce to delay the

release of proprietary information until after submission of such written fact or argument, which

may rely on such information. In this regard, the Department’s regulations contain separate

definitions for the term “party to the proceeding” and the term “authorized applicant.” See

19 C.F.R. § 351.102(b) (defining an “authorized applicant” as “an applicant that the Secretary

has authorized to receive business proprietary information under an APO under [19 U.S.C.

§ 1677f(c)(1)].”). For similar reasons, the court is not persuaded by Nucor’s argument that
Court No. 07-00174 Page 11

Commerce implicitly recognized Nucor’s status as a party to the proceeding by disclosing to

Nucor its preliminary calculations. Neither the statute, in 19 U.S.C. § 1677f(c)(1), nor the

Department’s regulations, in 19 C.F.R. § 351.224(b), both of which pertain to the Department’s

disclosure of preliminary calculations, preclude the release of preliminary calculations to a

person who has not yet qualified for status as a party to the proceeding.

In support of its claim of standing, Nucor cites the unpublished opinion of the Court of

Appeals for the Federal Circuit in Laclede Steel Co. v. United States, No. 96-1029, 1996 U.S.

App. LEXIS 16167 (Fed. Cir. 1996), aff’g 19 CIT 1076 (1995). Pl.’s Resp. to Def.’s Mot. to

Dismiss 2-3. Nucor also cites the opinions of the Court of International Trade in Specialty

Merchandise Corp. v. United States, 31 CIT __, __, 477 F. Supp. 2d. 1359, 1361-62 (2007),

Encon Industries, Inc. v. United States, 18 CIT 867 (1994), and American Grape Growers v.

United States, 9 CIT 103, 105-06, 604 F. Supp. 1245, 1249 (1985). Pl.’s Resp. to Def.’s Mot. to

Dismiss 2. Each of these cases is distinguishable from the instant case.

In Laclede Steel Co., the Court of Appeals for the Federal Circuit affirmed the Court of

International Trade’s allowing the intervention as a matter of right under 28 U.S.C.

§ 2631(j)(1)(B) of two Korean steel pipe manufacturers, Union Steel Manufacturing Company,

Limited (“Union”) and Dongbu Steel Company, Limited (“Dongbu”), in a judicial review of a

final Commerce antidumping determination on steel pipe. 1996 U.S. App. LEXIS 16167

at *1, *4. The plaintiff, a petitioner in the investigation, argued on appeal that Union and

Dongbu, whose participation in the antidumping investigation consisted of filing entries of

appearance before Commerce and submitting factual data on exports during the period of

investigation to assist Commerce in the selection of mandatory respondents, never actively
Court No. 07-00174 Page 12

participated in the antidumping investigation and therefore did not qualify as “parties to the

proceeding” for purposes of intervention. See id. at *1-*3. The Court of Appeals for the Federal

Circuit disagreed, reasoning that Union and Dongbu each actively participated in the

antidumping investigation so as to qualify as a “party to the proceeding” within the meaning of

28 U.S.C. § 2631(j)(1)(B). Id. at *4-*6. The Court of Appeals reasoned that in submitting the

factual data on exports, Union and Dongbu “corresponded with Commerce requesting exclusion

as mandatory respondents, thereby impliedly indicating their willingness to accept an ‘all others’

rate.” Id. at *6. This active participation, according to the Court of Appeals, made Commerce

aware of Union’s and Dongbu’s interests in the investigation and constituted steps that Union

and Dongbu deemed necessary to further their interests at the administrative level. Id. In

contrast, Nucor provided Commerce nothing to inform Commerce of any facts or positions

relevant to issues in the administrative review.

In Specialty Merchandise Corp., the Court of International Trade recently held that a

plaintiff obtained standing to contest a final determination of Commerce by filing a notice of

appearance with comments, albeit untimely, informing Commerce that the plaintiff was joining

arguments made by other parties in the administrative proceeding. 31 CIT at __, 477 F. Supp.

2d. at 1361-62. Here, Nucor’s pleadings do not allege that Nucor informed Commerce, either

orally or in writing, that Nucor was joining in the advocacy of any argument that any party had

made or was making in the administrative review. Nucor argues, nevertheless, that its “active

and consistent collaboration with other parties to the administrative review, including its visible

participation in the settlement negotiations, demonstrate that Nucor provided notice of its

concerns.” Pl.’s Resp. to Def.’s Mot. to Dismiss 5. This argument fails to overcome the problem
Court No. 07-00174 Page 13

inherent in Nucor’s allegation of standing, which is that Nucor fails to plead facts from which the

court could conclude that Nucor communicated with the Department, orally or in writing, on

anything of substance during the administrative review.

Encon Industries, Inc. also is unavailing as support for plaintiff’s standing argument. See

Encon Industries, Inc., 18 CIT 867. In that case, the Court of International Trade declined to

assert jurisdiction over the plaintiff’s challenge to an amended final less-than-fair-value

determination of Commerce because the plaintiff failed to exhaust its administrative remedies. 

Id. at 867-68. The plaintiff, during the investigation, had not challenged the methodology

Commerce used in calculating an “all others” rate. Id. at 868. Ruling on exhaustion grounds, the

Court of International Trade did not reach the issue of whether Encon, which had filed a notice of

appearance in the Commerce investigation but did not submit factual information or make oral or

written comments, had standing to file suit under 19 U.S.C. § 1516a and 28 U.S.C. §2631(c). Id.

In dicta, however, the Court of International Trade stated that “[t]he court is inclined to view the

participation requirement as intending meaningful participation, that is, action which would put

Commerce on notice of a party’s concerns.” Id. (citing Am. Grape Growers, 9 CIT at 105-06,

604 F. Supp. at 1249). 

Nucor quotes language from the opinion American Grape Growers. Pl.’s Resp. to Def.’s

Mot. to Dismiss 2. In that case, the Court of International Trade stated that 

[o]n the question of participation in the proceeding, the law is satisfied by any form

of notification or participation which reasonably conveys the separate status of a

party. The participation requirement is obviously intended only to bar action by

someone who did not take the opportunity to further its interests on the

administrative level.
Court No. 07-00174 Page 14

9 CIT at 105-06, 604 F. Supp. at 1249. At issue in American Grape Growers was whether

Gibson Wine Co. (“Gibson”) had standing before the Court of International Trade to contest a

final injury determination that the U.S. International Trade Commission (“ITC”) issued in

antidumping and countervailing duty investigations of imported table wine from France and Italy. 

9 CIT at 103, 105-06, 604 F. Supp. at 1247, 1249. The question of Gibson’s standing arose in

the context of whether Gibson did anything more than participate in the ITC’s administrative

proceeding through passive membership in an umbrella organization. Id. The Court in American

Grape Growers concluded that Gibson met the required standards for participation, noting that

“[t]he listing of Gibson as a co-petitioner in a post-conference brief is sufficient to satisfy these

standards.” 9 CIT at 106, 604 F. Supp. at 1249. Because Gibson’s level of participation in the

ITC proceeding was not closely analogous to Nucor’s claimed participation in the administrative

review, American Grape Growers does not lend guidance to the resolution of the standing

question presented by defendant’s motion to dismiss.

In summary, Nucor has failed to allege facts from which the court may conclude that

Nucor was a party to the administrative proceeding culminating in the issuance of the Final

Results. Nucor, therefore, lacks the standing Congress required of any person seeking judicial

review under 19 U.S.C. § 1516a.

B. The Motions for Intervention of Right Must Be Denied

The proposed plaintiff-intervenors timely moved to intervene as a matter of right pursuant

to 28 U.S.C. § 2631(j)(1)(B) and USCIT Rule 24(a). See USCIT R. 24(a) (providing that a

motion is timely if made no later than thirty days after the date of service of the complaint);

Stelco’s Mot. to Intervene 1, 3; Dofasco, Sorevco, Do Sol Galva Mot. to Intervene ¶¶ 2, 4;
Court No. 07-00174 Page 15

U.S. Steel Mot. to Intervene ¶¶ 2, 4; Mittal Steel USA Mot. to Intervene 1-2. The issue presented

by the motions to intervene is whether this case may be continued by the proposed plaintiffintervenors even though Nucor lacked standing to maintain its cause of action. The court

concludes that dismissal is required here by application of the fundamental principle that

intervention cannot cure a jurisdictional defect in the original suit. See United States ex rel. Tex.

Portland Cement Co. v. McCord, 233 U.S. 157, 163-64 (1914); Simmons v. Interstate Commerce

Comm’n, 716 F.2d 40 (D.C. Cir. 1983). 

In Simmons, the Court of Appeals for the District of Columbia Circuit, upon considering

an issue similar to that presented by this case, dismissed for lack of subject matter jurisdiction a

cause of action in a judicial proceeding brought under the Hobbs Act, 28 U.S.C. § 2344. 

716 F.2d at 41. Plaintiff Simmons initiated the action to obtain review of an order issued by the

Interstate Commerce Commission (“ICC”) that reduced various regulatory reporting

requirements applicable to motor carriers. Id. at 41-42. The Court concluded that plaintiff

Simmons, who filed his petition for direct review of the ICC order in the Court of Appeals during

the sixty-day filing period set forth in the Hobbs Act, lacked standing as a petitioner because he

was not a party to the ICC’s rulemaking proceeding that was preliminary to the issuance of the

contested order. Id. Even though the Court of Appeals earlier had granted the unopposed

intervention motion under 28 U.S.C. § 2348 of The International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, the Court concluded that the intervenor

could not maintain the suit in the absence of the plaintiff Simmons. Id. at 42, 46. The Court

explained that because the intervenor failed to file its own petition or move for intervention
Court No. 07-00174 Page 16

during the sixty-day period for initiating a cause of action under the Hobbs Act, it lacked its own

independent basis of jurisdiction. Id. at 46. 

The Court distinguished its holding from that of the Court of Appeals for the Third

Circuit in United States Steel Corp. v. EPA, 614 F.2d 843, 845 (3d. Cir. 1979), in which an

intervenor was permitted to continue a suit after the party who originally provided valid subject

matter jurisdiction left the case. See Simmons, 716 F.2d at 46. It also distinguished its holding

from Courts of Appeals cases in which the intervenor itself provided subject matter jurisdiction. 

See id. (citing Atkins v. State Bd. of Educ. of N.C., 418 F.2d 874, 876 (4th Cir. 1969), Fuller v.

Volk, 351 F.2d 323, 328 (3d. Cir. 1965), Magdoff v. Saphin Television & Appliance, Inc., 228

F.2d 214, 215 (5th Cir. 1955), and Hunt Tool Co. v. Moore, Inc., 212 F.2d 685, 688 (5th Cir.

1954)). 

Nucor filed its summons on May 21, 2007, the last day on which such a filing was timely

within the thirty-day period in which a party could have sought judicial review of the Final

Results in the Court of International Trade under 19 U.S.C. § 1516a(a)(5). See 19 U.S.C.

§ 1516a(a)(2), (5). The motions to intervene, although timely under USCIT Rule 24, were filed

after the time period in which an original plaintiff could have invoked the court’s jurisdiction

under 28 U.S.C. § 1581(c) to review the Final Results. Because the only party that attempted to

invoke the subject matter jurisdiction of the court during that thirty-day period lacked standing to

maintain a cause of action, that jurisdiction never attached to Nucor’s claim. See Simmons,

716 F.2d at 46. The right to intervene presupposes an action duly brought according to the terms

of the statute under which the original plaintiff brought its case. See United States ex rel. Tex.
Court No. 07-00174 Page 17

 In arguing that Nucor’s lack of standing requires the court to dismiss this action for lack 6

of jurisdiction, defendant cites Bhullar v. United States, 27 CIT 532, 546, 259 F. Supp. 2d 1332,

1344 (2003), aff’d, 93 Fed. Appx. 218 (Fed. Cir. 2004). Def.’s Mot. to Dismiss 5-6. Although

supporting the general principle that a plaintiff’s lack of standing is a jurisdictional defect,

Bhullar did not involve an issue directly analogous to that presented by the motions to intervene. 

In Bhullar, the plaintiff, a stockholder in a Canadian forest products company, sought review

under § 1581(c) or, alternatively, under § 1581(i), of antidumping and countervailing duty

determinations on imports of Canadian softwood lumber, claiming that the assessment of duties

pursuant to the determinations caused a decrease in the value of plaintiff’s stock. See

27 CIT 532, 259 F. Supp. 2d 1332. The Court of International Trade held, inter alia, that

plaintiff lacked standing because plaintiff “shareholder” was not an “interested party” under

19 U.S.C. §§ 1516a(d) and 1677(9). 27 CIT at 546, 259 F. Supp. 2d at 1343-44.

Portland Cement Co., 233 U.S. at 163 (stating that “[t]hese rights to intervene and to file a claim,

conferred by the statute, presuppose an action duly brought under its terms.”).

6

C. The Motion for an Injunction Against Liquidation Must Be Denied

Nucor moves under 19 U.S.C. § 1516a(c)(2) for a preliminary injunction against

liquidation of entries of subject merchandise produced by Stelco, Dofasco, Sorevco, and Do Sol

Galva. Mot. for Prelim. Inj. 2 (stating that “Plaintiff moves to enjoin liquidation as a matter of

right pursuant to 19 U.S.C. § 1516a(c)(2).”). The court may order an injunction against

liquidation “[i]n the case of a determination described in [19 U.S.C. § 1516a(a)(2)]” only “upon a

request by an interested party for such relief and a proper showing that the requested relief should

be granted under the circumstances.” 19 U.S.C. § 1516a(c)(2). The determination contested in

this case, the Final Results in an administrative review issued under 19 U.S.C. §1675 (2000), is

within the scope of § 1516a(a)(2) and Nucor, as a domestic producer of the like product, is an

“interested party” at least for purposes of 19 U.S.C. § 1677(9)(C). Nucor, however, is unable to

satisfy the other requirement of § 1516a(c)(2), which is “a proper showing that the requested

relief should be granted under the circumstances.” Id.
Court No. 07-00174 Page 18

The controlling circumstance is that subject matter jurisdiction did not attach to Nucor’s

cause of action and, for the reasons discussed previously, the court must dismiss this case despite

the motions to intervene. Nucor argues that the court should grant Nucor’s motion to enjoin

liquidation because it has satisfied the four requirements for a preliminary injunction, i.e., that

Nucor will be immediately and irreparably injured, that there is a likelihood of success on the

merits, that the public interest would be better served by the relief requested, and that the balance

of hardship on all the parties favors movant Nucor. Mot. for Prelim. Inj. 2-3 (citing U.S. Ass’n of

Imps. of Textiles & Apparel v. United States, 413 F.3d 1344, 1346 (Fed. Cir. 2005) and Zenith

Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)). The court is unable to agree

with this argument. Because jurisdiction did not attach to Nucor’s cause of action, the court may

not order equitable relief that is sought to preserve the status quo by preventing liquidation of the

affected entries.

III. CONCLUSION

The court concludes that subject matter jurisdiction does not exist over this action and

that defendant’s motion to dismiss therefore must be granted. The court will deny the motions to

intervene, deny the motion of plaintiff for a preliminary injunction, grant the motion of defendant

to dismiss for lack of subject matter jurisdiction, and enter judgment dismissing this action.

/s/ Timothy C. Stanceu 

Timothy C. Stanceu

Judge

Dated: September 26, 2007

New York, New York
NUCOR CORPORATION,

Plaintiff,

v.

UNITED STATES,

Defendant.

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Timothy C. Stanceu, Judge

Court No. 07-00174

JUDGMENT

In conformity with the Opinion issued in this case on this day, and in consideration of all

papers and proceedings herein, it is hereby

ORDERED that defendant’s motion to dismiss this action for lack of subject matter

jurisdiction, filed on August 8, 2007, is GRANTED, and it is further

ORDERED that this action be, and hereby is, dismissed.

/s/ Timothy C. Stanceu 

Timothy C. Stanceu

Judge

Dated: September 26, 2007

New York, New York
ERRATUM

Nucor Corporation v. United States, Court No. 07-00174, Slip Op. 07-144 (Sept. 26, 2007).

On page one, in the last paragraph, please add the name “Stephen C. Tosini” so that the last

paragraph reads:

Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,

Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation

Branch, Civil Division, United States Department of Justice (Richard P.

Schroeder, David S. Silverbrand, and Stephen C. Tosini); Mark B. Lehnardt,

Office of Chief Counsel for Import Administration, United States Department of

Commerce, of counsel, for defendant.

October 2, 2007