SLIP OP. 02-84 UNITED STATES COURT OF INTERNATIONAL TRADE

___________________________________________ : GEUM POONG CORPORATION AND SAM : YOUNG SYNTHETICS CO., LTD. : Plaintiff s, :

: Consolidated Court No. 00-06-00298 v. : : UNITED STATES OF AMERICA, : : Defend ant, :

: v. : : E.I. DUPONT DE NEMOURS, I NC. AND : ARTEVA SPE CIAL

ITI ES S.a.r.l ., d/b/a : KOSA, and WELL

MAN INC., : : Defendant Inter

venors. : ___________________________________________: [Preliminary I

njunction Denied; TRO Dissolved] Dated: August 6, 2002 Sandler, Travis & Rosenberg, P.A. ( Philip S. Ga llas, Gregory

S. Menegaz and Mark. R. Ludwikowski ) for pla

intiffs. Robert D. McCallum , Jr. Assistant Attorney General, David M. Cohen , Director, Lucius B. L au , Assistant Director, Commercial Litigation Bra nch, Civil Division, United States Department of Justice ( Jonathan Sil ls ), Scott D. McBride , Office of the General Counsel, United States Department of Commerce, o f counse l, for de fendant

. Co ll ier Sh ann on S cot t, PLLC ( Paul C. Rosenthal , David C. Smith, Jr. and Grace W. Kim ) for defenda nt-inter venors. Gru nfe ld , De si der io , Leb owi tz , S il ver man & Kl est adt LLP ( Andrew B . Schroth , Adam M. Dambrovand Eric Smithweiss) for plaintiff-intervenor William Barnet & Son, I nc. Sandler, Travis & Rosenberg, P.A. ( Arthur Pu rcell, Gregory

S. Menegaz and Kenneth N. Wolf) for plaintiff-intervenor Consolidated Textiles, Inc.CASE NO. 00-06-00298 Page 2 OPINION RESTANI, Judge: This matter is before the court on the motions of two plaintiff-intervenors, William Barnet & Son, I

nc. and Consolidated Textiles, Inc. (collectively , “Plaintiff-Intervenors” ) for a preliminary injunction in this antidumping duty matter. Defendant United States consents to the enjoining of liquida

tion in ac cordanc e with 19 U .S.C. § 1516 a(c)( 2) (2000) (injuncti ve relie f) to permit eventual liquidation in conformity with final cour t action. Defendant-I

ntervenors oppose. Movants are importers of merchandise subject to the antidumping or der who seek the benefit of the Department of Commerce' s decision following court ordered remand in this action,

see Geum Poong Corporation v. United States , 193 F. Supp. 2d 1363 (Ct. Int'l Trade 2002) , which re sulted in a

lower an tidumping

margin for Plain tiff Geu m Poong Cor

poration , which in turn lowe rs the “a ll others” rate. The lower a

ll others r ate will b e applic able to mo vants shou ld they obtain the injunction they seek. See 19 U.S.C. § 1 516a(e) (2) (pr oviding f or liquida tion in accordance with final court decision of “ entries, the liquidation of which was enjoined under subsection (c)(2) of [§1516a]”). The court would have little reason to de ny the injunction but for the fact that Plaintiff-Interve nors’ status as intervenors, granted in conjunction with the g ranting of tempor ary restrai ning ord ers her ein, is challeng ed, and p arty status is a

necessa ry requisite to
any relief. Thus, onc e aga

in the cou rt is call ed upon to

apply Court of I

nternat ional Tra de Rule 24 on intervention in a trade matter. USCIT Rule 24. Defendant takes no position on the proper interpretation of the c ourt rule at issue but alleges no prejudice to the gove rnmental agency

and therefore does not oppose intervention or injunctive relief. Defendant-I ntervenor alleges prejudice be cause the funds available to them asCASE NO. 00-06-00298 Page 3

1 This provision allows members of the corresponding domestic industry, such as Defendant-Inte

rvenor to be reimbursed for certain qua lifying expenses fr

om duties assessed on the subject merchandise.

2 The court recently

addressed this statutory provision in Altx, Inc. v. United States , Slip. Op. 02-66 (Ct. Int'l Trade July 12, 2002). I

n that case no antidumping order y et existed and the domestic i

ndustry movant wa s the par

ty c laiming p

rejudic e from po tentially

diminished

duty collecti on. Thus, t

he burde ns were differe nt.

3 Both William Barret & Son, Inc ., and Consolidated Textiles, Inc. appeared a nd participated as interested parties in the antidumping duty investigation underly

ing this action. domestic parties qualifying under 19 U.S.C. § 1675c (2000) 1 to receive assessed duties will be reduced pending the injunction. 2 If the court w ere bal ancing hardship s, it would b e incline d to give movants’ request to have its entries liquidated in accor dance with the final court decision greater weight than D efendant-Inter venor’s claim of a delay

in access to funds, but that is not the only issue here. The primary issue be fore the court is whether a party with an absolute right to intervene, 3 if it fails to do so within 30 days of the service of the complaint, may do so two y ears later because the litigation is now leaning its way , without satisfying the g ood cause test found in the rules. In Siam Food Prods. Pub. Co. v. United States , 22 CIT 826, 24 F. Supp. 2d 276 (1998), the court decided the issue of intervention as of rig ht under USCIT Rule 24(a), and the import of the 30-da y lim it contained there in for actions file d under 2 8 U.S.C. § 15 81(c)( 1994), su ch as this
case. T here the court not ed that th e 30-day

limit may

be waive d only

for goo d cause, which is defined as mistake , inadver

tence, s urprise , excusabl e negle ct, or ina bility to file wit

hin 30 day

s, despite due diligence. Siam Food , 22 CIT at 827, 24 F. Supp. 2d at 278. Finding none of theCASE NO. 00-06-00298 Page 4

4 The parties discuss many cases which pre-date the 30-day limit which was added to the curren t rule by amendme

nt in 1993. T

hey do not inform the co

urt. requisite causes shown, the court declined to allow intervention. 4 Id. , 22 CIT at 830, 24 F. Supp. 2d at 281. Movants can cite no published opinion which explicitly dispenses with the requirements of the current rule, althoug h in some cases late intervention has been permitted. What circumstances will permit such late intervention has not been made clea r. Movants argue that the time limit applies only to parties who contemplate “active litigation” and not to parties who merely seek liquidation in accordance with judicial review. First, th e rule ha s no such li miting la nguag e. Secon

d, if mova

nts imply there c an be no le gally cogniza ble prej udice to a

ny p arty as a res ult of such “limited

interve ntion,” he re DefendantIntervenors make out a

case of at least potential prejudice flowing dir ectly from such inter

vention because of the delay

in assessment of duties to be placed in the fund established by 19 U.S.C. § 1675c. Thus, if the Rule 24(a) time limit has such an implicitly conscr ibed application, the implication does not arise in this case. Movants also argue that the court will be flooded with pro forma motions to intervene and for injunctive relief if the time limit of Rule 24(a) is enforced. The court believes that questions of balancing court efficienc y and the par

ties' burdens are addressed by the rule. The court concludes that, if necessary , the terms of rule may

be revisited in the future, but the rule as it exists now must be applied even-handedly to all conc erned. Movants also seek intervention under Rule 24(b) (permissive intervention), but such intervention must be “timely” soug ht. Under 28 U.S.C. § 2631(j) (2000), however, permissiveCASE NO. 00-06-00298 Page 5

5 The statu

te provid es in rele vant par t as follow s: Any person who would be adversely affected or agg

rieved by a

decision in a civil action pending in the Court of Interna tional Trade may , by leave of court, intervene in such action, except that . . . in

a civil ac tion u

nder sect ion 51 6A of

the T arif f Act of 19 30 [19 USC § 1 516a ], only an interested pa

rty who was a

party to the proc eeding in connection with which the matter arose may

intervene, and such person may intervene as a matter of right ; 28 U.S.C. § 2631(j)(1)(B) (emphasis added). intervention is apparently una vailable in unfair trade actions brought under 19 U.S.C. § 1516a. 5 Even if permissive intervention were allowed in such case s, the court should be guided by the time limits applicable to intervention as of right in trade cases in deciding what is “timely” under Rule 24(b ). A wholl

y di ffere nt view of

“timely ” would nu

llify the spec ific 30-d

ay limit of Rule 24(a). The court concludes that movants have not even attempted to show g ood cause for failing to timely interve ne. Mova

nts could have inte

rvened a s of rig

ht from the

outset an d likely would have been granted injunctive re lief, but under existing court rules they may not intervene now

. Accordingly , the court’s orders permitting such intervention are vacated.

The temporary

restraining orders issued in this matter are dissolved.

______________________ Jane A. Restani JUDGE Dated: New York, New York This 6th day of Aug ust, 2002