JIANGSU JIASHENG PHOTOVOLTAIC 

TECHNOLOGY CO., LTD., 

Plaintiff,

v. 

UNITED STATES, 

Defendant.

Slip Op. 15 - 

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION and ORDER

[denying motion to intervene out of time] 

Dated: June 16, 2015 

Gregory S. Menegaz, J. Kevin Horgan, and John J. 

Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for the 

movant.

L. Misha Preheim, Senior Trial Counsel, Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice, 

of Washington, DC, for the Defendant. Also on the brief were 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, 

Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., 

Assistant Director. Of counsel was Rebecca Cantu, Senior 

Attorney, Office of the Chief Counsel for Trade Enforcement & 

Compliance, U.S. Department of Commerce.

Pogue, Senior Judge: This consolidated action arises 

from the United States Department of Commerce’s (“Commerce”) 

antidumping (“AD”) investigation of crystalline silicon 

photovoltaic cells (“CSPC” or “subject merchandise”) from the 

1

 This action is consolidated with SolarWorld Americas, Inc. 

v. United States, Ct. No. 13-00006. Order June 12, 2013,

ECF No. 18. 

Before: Donald C. Pogue, 

Senior Judge 

Consol. Court No. 13-000121
Consol. Ct. No. 13-00012 Page 2 

People’s Republic of China (“PRC” or “China”).2 Before the court 

is a motion by Sumec Hardware & Tools Company, Limited (“Sumec”) 

– an exporter of subject merchandise that participated in the 

investigation – to intervene in this action, notwithstanding the 

passage of more than two years since the litigation began.3

The court has jurisdiction pursuant to 

Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 

19 U.S.C. § 1516a(a)(2)(B)(i) (2012),4

 and 28 U.S.C. 

§ 1581(c) (2012).

As explained below, because Sumec has not shown good 

2

 See [CSPC], Whether or Not Assembled into Modules, from the 

[PRC], 77 Fed. Reg. 63,791 (Dep’t Commerce Oct. 17, 2012) (final 

determination of sales at less than fair value, and affirmative 

final determination of critical circumstances, in part) (“Final 

Results”) and accompanying Issues & Decision Mem., A-570-979, 

AD Investigation (Oct. 9, 2012).

3

 See Mot. for Intervention Pursuant to Rule 24(a)(3), 

ECF No. 101 (“Sumec’s Mot.”) (filed on May 14, 2015); Compl., 

Ct. No. 13-00006 (consolidated with this action, see supra

note 1), ECF No. 8 (filed on February 1, 2013, challenging, 

inter alia, the AD cash deposit rate established for Sumec in 

this investigation; certifying service of the complaint on 

Sumec’s counsel). Pursuant to USCIT R. 24(a)(3), “[i]n an 

action described in 28 U.S.C. § 1581(c), a timely motion [to 

intervene] must be made no later than 30 days after the date of 

service of the complaint . . ., unless for good cause shown at 

such later time for the following reasons: (i) mistake, 

inadvertence, surprise or excusable neglect; or (ii) under 

circumstances in which by due diligence a motion to intervene 

under this subsection could not have been made within the 30-day 

period.”

4

 Further citations to the Tariff Act of 1930, as amended, are to 

the relevant provisions of Title 19 of the U.S. Code, 

2012 edition. 
Consol. Ct. No. 13-00012 Page 3 

cause for filing its motion more than two years past the 30-day 

time limit for intervention, Sumec’s motion to intervene out of 

time in this action is therefore denied.

BACKGROUND

Because Commerce considers the PRC to be a non-market 

economy (“NME”),5

 when investigating merchandise from China, the 

agency presumes that the export operations of all Chinese 

producers and exporters are controlled by the PRC government, 

unless respondents show otherwise.6

 As a result, Commerce’s 

practice is to assign to all exporters from the PRC a single 

“countrywide” antidumping duty rate unless they affirmatively 

establish eligibility for a “separate rate” by demonstrating 

both de jure (in law) and de facto (in fact) autonomy during the 

5

 See [CSPC], Whether or Not Assembled into Modules, from the 

[PRC], 76 Fed. Reg. 70,960, 70,962 (Dep’t Commerce 

Nov. 16, 2011) (initiation of antidumping duty investigation) 

(“The presumption of NME status for the PRC has not been revoked 

by [Commerce] and, therefore, in accordance with [19 U.S.C. 

1677(18)(C)(i)], remains in effect for purposes of the 

initiation of this investigation.”).

6

 See [CSPC], Whether or Not Assembled into Modules, from the 

[PRC], 77 Fed. Reg. 31,309, 31,315 (Dep’t Commerce May 25, 2012) 

(preliminary determination of sales at less than fair value, 

postponement of final determination and affirmative preliminary 

determination of critical circumstances) (“Prelim. Results”) 

(“In proceedings involving NME countries, [Commerce] has a 

rebuttable presumption that all companies within the country are 

subject to government control and thus should be assessed a 

single AD rate.”) (citation omitted) (unchanged in the 

Final Results, 77 Fed. Reg. at 63,794).
Consol. Ct. No. 13-00012 Page 4 

period of investigation.7 Here, Commerce initially determined 

that Sumec had adequately established its eligibility for a 

separate rate.8

 On February 1, 2013, however, SolarWorld 

Americas Inc. (formerly SolarWorld Industries America, Inc.9

)

(“SolarWorld”) – a U.S. manufacturer of the domestic like 

product and a petitioner in the underlying investigation10 – 

filed (and served on Sumec) a complaint challenging this 

determination (among other challenges to the final results of 

this investigation).11 Although a number of the 

producers/exporters whose separate rate status was challenged in 

SolarWorld’s complaint timely moved to intervene in this action, 

Sumec was not among them.12

7

 Prelim. Results, 77 Fed. Reg. at 31,315 (unchanged in the 

Final Results, 77 Fed. Reg. at 63,794).

8

 See Final Results, 77 Fed. Reg. at 63,796. 

9

 See Order Nov. 5, 2014, ECF No. 88 (granting SolarWorld’s 

motion to amend the caption of this proceeding “to reflect the 

change in name of SolarWorld Industries America, Inc. to 

SolarWorld Americas Inc.”).

10 Compl., Ct. No. 13-00006 (consolidated with this action, 

see supra note 1), ECF No. 8, at ¶ 3.

11 Id. at ¶¶ 12-14, Certificate of Service. 

12 See Order Feb. 22, 2013, Ct. No. 13-00006, ECF No. 15; 

Order Mar. 5, 2013, Ct. No. 13-00006, ECF No. 27; Order Mar. 13, 

2013, Ct. No. 13-00006, ECF No. 33 (each order granting timely 

motions to intervene); cf. Siam Food Prods. Pub. Co. v. United 

States, 22 CIT 826, 829, 24 F. Supp. 2d 276, 280 (1998) 

(“Parties with identified interests in the results of a review 

have the option to protect those interests by intervening in the 

(footnote continued) 
Consol. Ct. No. 13-00012 Page 5 

After the close of briefing, on June 4, 2014, the 

court docketed a list of questions for the parties to address at 

the oral argument to be held on June 18, 2014.13 Among the 

court’s questions were a number of inquiries regarding 

SolarWorld’s challenge to Commerce’s grant of separate rate 

status to certain of respondents in this investigation, 

including Sumec.14 Upon review of these questions, Commerce 

decided to “reconsider and reevaluate its determination to grant 

a separate rate to four respondents,”15 including Sumec,16 and 

accordingly moved for a voluntary remand “to reevaluate the 

evidence and reconsider the separate rate eligibility of[, inter

alia, Sumec].”17 This motion was unopposed.18 Finding the motion 

to have been based on a substantial and legitimate concern, the 

court granted Commerce’s request for a voluntary remand to 

proceedings.”) (citing USCIT R. 24).

13 See Letter from Ct. Re Oral Arg., ECF No. 80. 

14 See id. at 9-15.

15 Def.’s Mot. for Voluntary Remand, ECF No. 81 (“Def.’s Mot. for 

Remand”) at 1.

16 Id. at 2.

17 Id. at 3.

18 See ECF Nos. 81-89; see also Oral Arg. Tr., ECF No. 83, at 20 

(SolarWorld’s counsel “welcom[ing] the United States’ motion for 

a voluntary remand”). 
Consol. Ct. No. 13-00012 Page 6 

reconsider the separate rate eligibility of, inter alia, Sumec.19

At no point during this process did Sumec seek to intervene to 

protect its interests in retaining its separate rate.

On remand, Commerce determined that Sumec failed to 

affirmatively establish its de facto independence from 

government control, and hence concluded that Sumec was not 

eligible for a rate separate from the China-wide entity.20

Finding itself aggrieved by this determination, Sumec then moved 

to intervene in this action, outside of the 30-day window 

afforded for intervention as a matter of right,21 arguing that 

Commerce’s determination on remand was a “surprise” within the 

meaning of USCIT Rule 24(a)(3)(i).22

19 Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States, 

__ CIT __, 28 F. Supp. 3d 1317, 1340-41 (2014). See id. at 1340 

n.113 (quoting SKF USA Inc. v. United States, 254 F.3d 1022, 

1029 (Fed. Cir. 2001) (“[E]ven if there are no intervening 

events, the agency may request a remand (without confessing 

error) in order to reconsider its previous position.

. . . [I]f the agency’s concern is substantial and legitimate, 

a remand is usually appropriate.”), and noting that Commerce’s 

stated concern was “consistency of agency action with other 

pending cases where a similar issue is presented” (quotation 

marks and citation omitted)).

20 Final Results of Redetermination Pursuant to Ct. Order, 

ECF Nos. 97-1 (conf. version) & 98-1 (pub. version) (“Remand 

Results”) at 8, 10-11, 23-25.

21 Sumec’s Mot., ECF No. 101.

22 Id. at 4; see USCIT R. 24(a)(3)(i) (defining “good cause” for 

tardy intervention in actions challenging Commerce’s antidumping 

determinations as including, inter alia, “surprise”).
Consol. Ct. No. 13-00012 Page 7 

DISCUSSION

USCIT Rule 24(a)(3), which governs intervention in 

actions challenging Commerce’s antidumping determinations,23

provides that interested parties may intervene as a matter of 

right within 30 days after the date of service of the complaint, 

and “expresses a clear mandatory standard that the court may 

waive the 30-day limit only if good cause is shown.”24 “Good 

cause” is defined as either (1) “mistake, inadvertence, surprise 

or excusable neglect,” or (2) “circumstances in which by due 

diligence a motion to intervene under this subsection could not 

have been made within the 30–day period.”25

23 USCIT R. 24(a)(3) (covering “action[s] described in 28 U.S.C. 

§ 1581(c)”); 28 U.S.C. § 1581(c) (“The Court of International 

Trade shall have exclusive jurisdiction of any civil action 

commenced under [19 U.S.C. § 1516a].”); 19 U.S.C. § 1516a 

(providing causes of action for judicial review of 

countervailing duty and antidumping duty proceedings); 19 U.S.C. 

§ 1516a(a)(2)(B)(i) (providing cause of action for review of 

Commerce’s determinations in antidumping investigations such as 

the one at issue here); 28 U.S.C. § 2631(j)(1)(B) (“Any person 

who would be adversely affected or aggrieved by a decision in a 

civil action pending in the Court of International Trade may, by 

leave of court, intervene in such action, except that . . . in a 

civil action under [19 U.S.C. § 1516a], only an interested party 

who was a party to the proceeding in connection with which the 

matter arose may intervene, and such person may intervene as a 

matter of right[.]”). 

24 Siam Food Prods., 22 CIT at 827, 24 F. Supp. 2d at 278 (citing 

USCIT R. 24(a)).

25 USCIT R. 24(a)(3). Sumec does not argue that it could not 

have, by due diligence, filed its motion to intervene within the 

30-day period. See Sumec’s Mot., ECF No. 101.
Consol. Ct. No. 13-00012 Page 8 

Here, Sumec argues that good cause exists for its 

tardy intervention because, notwithstanding Sumec’s actual 

knowledge of SolarWorld’s pending legal challenge to Sumec’s 

separate rate status in the investigation, Sumec believed that 

the challenge was meritless, and hence saw no need to intervene 

until the “surprise” of Commerce’s decision on remand.26 But 

adopting this interpretation of “surprise” as good cause for 

tardy intervention within the meaning of Rule 24(a)(3) would 

essentially render that provision’s 30-day time limit 

meaningless. For under this interpretation, all would-be 

Defendant-Intervenors could claim good faith (subjective) belief 

in the legality of Commerce’s favorable determination, and thus 

unpredictably delay their intervention until the outcome of the 

litigation begins to appear unfavorable. Such an interpretation 

“would render the actual time limit [for intervention] 

superfluous.”27

26 See Sumec’s Mot., ECF No. 101, at 1-2 (explaining that Sumec 

“did not appeal or intervene” within the 30-day period because 

it “was not [yet] adversely affected” by Commerce’s decision); 

id. at 3 (“Sumec Hardware was not aggrieved in the original 

final results [of the underlying AD investigation] and could not 

have reasonabl[y] predicted that the litigation would result in 

the denial of its separate rate.”); id. at 4 (“[Sumec] had no 

reason to seek appeal [or intervene] [but] has now been 

significantly aggrieved by a decision it could not predict. The 

decision was a ‘surprise.’”) (quoting USCIT R. 24(a)(3)(i)).

27 See Siam Food Prods., 22 CIT at 830, 24 F. Supp. 2d at 281; 

see also id. (“Under such a scenario [where tardy strategic 

(footnote continued) 
Consol. Ct. No. 13-00012 Page 9 

That Sumec was subjectively surprised by the turn of 

events in the course of this litigation does not negate its 

awareness, at the time that SolarWorld served its complaint, 

that Sumec’s interests in the outcome of this AD investigation 

may be adversely affected by this litigation. Thus this is not 

a case of surprise, but rather an example of a failed litigation 

strategy. Sumec knew its interests were at stake, and yet made 

a conscious decision to risk letting the litigation play out 

without Sumec’s intervention. Sumec not only did not intervene 

within the 30-day time limit, but Sumec also did not seek to 

intervene at any point during the briefing of SolarWorld’s 

challenge to Sumec’s separate rate, nor even once it became 

apparent that Commerce itself was seeking an unopposed voluntary 

remand to reconsider the evidence on this issue. That this 

strategy turned out to be unwise is neither surprising nor 

excusable.28 It does not constitute “good cause” within the 

intervention is permitted so long as the movant files early 

enough to continue the action without too much prejudice to the 

opposing parties], existing parties and the court might not know 

when to expect intervention, the proceedings on the merits could 

be interrupted and/or delayed by motions to intervene, and extra 

adjudication could be routinely required for parties who choose 

to file late. The court assumes the 30-day limit added [to 

USCIT Rule 24(a)(3)] in 1993 was intended to avoid this result.

The time limit cannot be so easily avoided, even if some 

prejudice to the late filer results from denial of the 

motion.”).

28 See USCIT Rule 24(a)(3)(i); cf. GPX Int’l Tire Corp. v. United 

(footnote continued) 
Consol. Ct. No. 13-00012 Page 10 

meaning of USCIT Rule 24(a)(3).

Nor is this a case of excusable neglect.29 Here the 

reason for Sumec’s tardiness was not neglect, but rather Sumec’s 

conscious decision not to intervene until the outcome of the 

litigation began to appear unfavorable.30 As in GPX, Sumec “had 

notice of the substantive issues raised by the appeal[] and 

could have moved to intervene.”31 Instead, “it delayed its 

decision on its involvement,”32 awaiting the outcome of the 

remand determination. As in GPX and Siam Products, this does 

not constitute “excusable neglect,” but rather “a conscious 

decision not to intervene timely.”33 As in Siam Products,34 this 

States, 33 CIT 114, 116-17 (2009) (not reported in the Federal 

Supplement) (declining to find good cause for tardy intervention 

where the movant was aware of the litigation affecting its 

interests but made a conscious decision to delay intervention 

and assume the risk that the litigation may adversely affect its 

interests).

29 See Sumec’s Mot., ECF No. 101, at 3 (suggesting that the court 

apply the Supreme Court’s interpretation of “excusable neglect” 

to Sumec’s tardy intervention (citing Pioneer Inv. Servs. Co. v. 

Brunswick Assocs. LP, 507 U.S. 380, 395 (1993) (discussing 

“excusable neglect” in the context of Federal Rule of Civil 

Procedure 60(b)(1) (permitting courts to reopen judgments for 

reasons of “mistake, inadvertence, surprise, or excusable 

neglect”))).

30 See supra note 27 (quoting and citing Sumec’s motion).

31 GPX, 33 CIT at 117. 

32 See id. 

33 Id. (quoting Siam Food Prods., 22 CIT at 830, 24 F. Supp. 2d 

at 280) (internal quotation marks omitted).
Consol. Ct. No. 13-00012 Page 11 

was not a case of neglect at all, but rather a deliberate 

decision that turned out to have been imprudent. 

CONCLUSION

For all of the foregoing reasons, having shown no good 

cause for delaying its intervention until after completion of 

Commerce’s voluntary remand, Sumec has not established a basis 

for exception from Rule 24(a)(3)’s general requirement that 

interventions must be made within 30 days of the service of the 

complaint. Sumec’s untimely motion to intervene – now that the 

matter has been fully briefed, argued, opined upon, and 

reconsidered on remand – therefore must be, and hereby is, 

denied.

It is SO ORDERED. 

____/s/ Donald C. Pogue______ 

Donald C. Pogue, Senior Judge 

Dated: June 16, 2015 

 New York, NY 

34 See Siam Food Prods., 22 CIT at 830, 24 F. Supp. 2d at 280 

(“There is simply no ‘neglect.’ There was a conscious decision 

not to intervene . . . .”).