N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

HOME PRODUCTS INTERN ATIONAL, INC., Plaintiff

- Appellee

SINCE HARDWARE (GUAN GZHOU) CO. LTD., Plaintiff

v.

UNITED STATES, Defendant

- Appellee

v.

TARGET CORPORATION,
Movant

- Appellant

______________________

2020

- 1202

______________________
Appeal from the United States Court of International
Trade in No s . 1:07

- cv

- 00123

- LMG, 1:07

- cv

- 00126

- LMG, Senior Judge Leo M. Gordon.

______________________

Decided: February 16, 2021

______________________

F REDERICK L YLE I KENSON

, Blank Rome LLP, Washington, DC, for plaintiff

- appellee. Also represented by Case: 20-1202 Document: 89 Page: 1 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 2

K IERSTAN L EE C ARLSON

.

M ICHAEL D. S NYDER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant

- appellee. Also represented by
J EANNE D AVIDSON

, J ENNIFER B. D ICKEY

, P ATRICIA M.
M C C ARTHY ; S AAD Y OUNUS C HALCHAL

, Offi ce of Chief Counsel for Trade Enforcement and Compliance, U nited S tates Department of Commerce , Washington, DC.

P ATRICK D. G ILL
, Sandler, Travis & Roserberg, P.A., New York, NY, for movant

- appellant. Also represented by
W ILLIAM M ALONEY

.

______________________

Before O’M ALLEY

, T ARANTO

, and S TOLL

, Circuit Judges

. O’M ALLEY

, Circuit Judge

. Target Corporation (“Target”) seeks appellate review of an order of the Court of International Trade (“CIT”). See Home Prod. Int’l, Inc. v. United States , 405 F. Supp.
3d 1368 (Ct. Int’l Trade 2019) . Because Target was not aparty to the CIT action and has not preserved any argument challenging the CIT’s denial of its motion to intervene, we dismiss Target’s nonparty appeal

.
I. B ACKGROUND

In December 2016, after nearly ten years of litigation,
the CIT entered a stipulated final judgment in this antidumping case. The judgment was agreed to by all parties to the action: Home Products International, Inc. (“Home Products”), Since Hardware (Guangzhou) Co., Ltd. (“Since Hardware”) , and the United States. The judgment directed the United States Department of Commerce (“Commerce”)

to : (1) set the final weighted

- average dumping margin for ironing tables exported by Since Hardware a t 72.29% ; and (2) instruct United States Customs and Border Protection (“Customs”) to liquidate the entries at that rate. Case: 20-1202 Document: 89 Page: 2 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 3

Commerce complied . Customs, however, erroneously liqu idated ironing tables produced and exported by Since Hardware that entered between August 4, 2004, and July 31,

2005

— 224 total entries

— at the cash deposit rate of 9.47%

, rather than the court

- ordered rate

. Home Products, a domestic producer of ironing boardsand the petitioner for the imposition of antidumping duties, learned of Customs’ erro r in September 2017 and informed the government. The government promptly filed a
status report with the CIT, advising of the error . The government explain ed that , due to the controlling statutory scheme, Customs was powerless to correct its mistake and indicated that Customs would reliquidate if ordered to do so by the court

. A few weeks later, on October 27, 2017, the CIT entered an order directing reliqu idation of the erroneously liquidated entries. No party to the CIT action opposed the order. Reliquidation was scheduled for November 17, 2017

. On November 9, 2017, Target made its first appearance before the CIT

. Target is the importer of forty of t heerroneously liquidated entries and, as a result, paid millions of dollars less in duties than contemplated by the CIT’s judgment. Hoping to avoid reliquidation , Target filed
three motions: Motion to Intervene and Expedite; Motion for Expedited Stay of I mplementation of [the October 27, 2017 Order] ; and Motion to Reconsider and Vacate the
Court’s October 27, 2017 O rder

. On November 15, 2017,
the CIT stayed implementation of the October 27 , 2017 order. The stay remained in effect for twenty

- three months.

The CIT issued an Opinion and Order resolving Target’s motions on September 27, 2019. Explaining that the
intervention rules for trade actions are complex, the CIT
declined to substantively resolve Target’s motion to intervene. The court instead relied on CIT Rule 71 as authority allowing it to consider , in the context of judgment enforcement proceedings, submissions made by interested Case: 20-1202 Document: 89 Page: 3 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 4

nonparties. That rule provides

, “[w]hen an order grants relief for a nonparty or may be enforced against a nonp arty, the procedure for enforcing the order is the same as for a party.” CIT Rule 71. After considering Target’s and theparties’ arguments, the CIT determined that it had authority to order reliquidation and vacated its November 15, 2017 stay. Home Pro d. Int’l, Inc. , 405 F. Supp. 3d at 1378. The court denied Target’s motion to intervene as moot. Id.

Target filed a n otice of a ppeal with the CIT on November 26, 2019. The n otice characterized Target as a “Movant
to Intervene.” Target ’s Supp l . App. Ex h. A. Target’s merits briefing before this court, however, hardly mentions its attempt to intervene. Its statement of the case notes that the
CIT “ denied as moot Target’s motion [] to intervene .” Target’s Opening Br. 3. And Target mentions on the last p age of its opening brief, without explanation or argument, that the CIT abused its discretion by denying intervention:

“ Certainly it was an abuse of discretion for the CIT to deny intervention to Target to protect its rights. That abuse of discretion is reviewable by this Court. ” Id. at 27. Target’s reply brief does not reference or discuss intervention. See generally Target’s Reply Br.

On December 21, 2020, we sua sponte sought supplemental briefing from Target and the parties, asking f or an explanation why this nonparty appeal should be allowed

. We received those briefs on January 15, 2021.

II. D ISCUSSION

In the supplemental briefing, Target argues (1) that it
has preserved a challenge to the CIT’s denial of the motion
to intervene and (2) that it has a “unique interest” in thematter such that the ordinary rule against nonparty appeals should not apply. We address each argument in turn.

A.

The rule that a would

- be intervenor can appeal a decision denying intervention is well establish ed

. See , e.g. , Case: 20-1202 Document: 89 Page: 4 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 5

Wolfsen Land & Cattle Co. v. Pac. Coast Fed’n of Fishermen’s Ass’ns, 695 F.3d 1310, 1314

– 15 (Fed. Cir. 2012). It is equally well settled, however, that “ a n issue not raised by an appellant in its opening brief . . . is waived.” Becton
Di ckinson & Co. v. C.R. Bard, Inc. , 922 F.2d 792, 800 (Fed. Cir. 1990); see also SmithKline Beecham Corp. v. Apotex Corp. , 439 F.3d 1312, 1319 (Fed. Cir. 2006) (“[A]rguments not raised in the opening brief are waived.”). Cursorily
raised issues and undevelo ped arguments fare no better.
See SmithKline Beecham Corp

. , 439 F.3d at 1320 ; Fuji Photo Film Co. v. Jazz Photo Corp. , 394 F.3d 1368, 1375 n.4 (Fed. Cir. 2005) ; Graphic Controls Corp. v. Utah Med. Prod., Inc ., 149 F.3d 1382, 1385 (Fed. Cir. 1998).

As discussed, Target barely mentions its motion to intervene in its opening brief to this court. See Target’s Opening Br

. 3, 15, 27. The first mention appears in Target’s s tatement of the c ase and merely declare s the fact of
the CIT’s denial. Id. at 3. An additional mention appears on the last page of Target’s Argument section. Id. at 27. There, Target asserts , without elaboration , “[c]ertainly it was an abuse of discretion for the CIT to deny intervention

to Target to protect its rights.” Id.

Target argues that these references to the denial of the motion to intervene are sufficient to preserve a challenge to the CIT’s decision. Target’s Suppl. Br. 3

– 4. We disagree. Target’s right to intervene was seriously contested before
the CIT

. See J.A. 66

– 73 (Target’s memoran dum of law in support of its motion to intervene); J.A. 128

– 33 (Home Product’s memorandum in opposition to Target’s motion to
intervene ) ; J.A. 315

– 17 (the government’s opposition to Target’s motion to intervene)

. In particular, the parties argued that 28 U.S.C. § 2631(j)(1)(B), which limits intervention as a matter of right in antidumping cases to interested parties who participated in proceedings before Commerce, did not apply to Target

— Target had not participated in any capacity prior to 2017. Given the nature and complexity of the arguments surrounding Target’s motion to intervene, Case: 20-1202 Document: 89 Page: 5 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 6

Target’s bald statement to us on appeal that the CIT “certainly” abused its discretion is insufficient to preserve any argument on the issue.

B.

Having found that Targe t has preserved no basis for us to deem it a party to the CIT action, we next turn to the question whether Target should be allowed to appeal as a nonparty. In all but the narrowest circumstances, “ [t] he rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well
settled.” Marino v. Ortiz , 484 U.S. 301, 304 (1988); see also Karcher v. May , 484 U.S. 72, 77 (1987) (“[O]ne who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom.”); In re Leaf Tobacco Bd. of Trade of N.Y. , 222 U.S. 578, 581 (1911) (“One who is not a party to a record and judgment is not entitled to appeal therefrom.”)

. The rule against nonparty appeals has some exceptions. Most notably, except ions to the party requirement
arise in the class action context , where unnamed classmembers in a certified class would be bound by the judgment

. See , e.g. , Devlin v. Scardelletti , 536 U.S. 1, 14 (2002)

. Courts have also allow ed no n parties to appeal

, whi le stressing the exceptional nature of that result , in certain
circumstances where the nonparty has a “ sufficiently unique interest” in the matter. United States v. Osage Wind, LLC

, 871 F.3d 1078, 1085

– 86 (10th Cir. 2017 )

. Target and the government argue that Target should fall into the “unique interest” exception to the rule against nonparty appeals. Target’s Suppl. Br. 6

– 8; Government’s Suppl. Br. 4

– 9. Target contends that, because it sought to intervene and participated before the CIT, it is not a mere “interloper to the appeal who sat on the sidelines in the lower courts.” Target’s Suppl. Br. 7. It further asserts that “it would be an incredible waste of resources to force Target
to initiate a new action under 28 U.S. C. § 1581(a) so as to Case: 20-1202 Document: 89 Page: 6 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 7

drag this case out for another four years.” Id. at 8. The government notes that the CIT itself recognized Target’s interest, as an importer of record, in the matter and argues that there is no clearly defined set of rules establishi ng who can appeal from a CIT reliquidation order. Government’s Suppl. Br. 5.

In suggesting that this case qualifies as an exception to the strong rule against non party appeals , t he government points to a Ninth Circuit formulation that a nonparty “ will
h ave standing to appeal [a] decision only in exceptional circumstances when: (1) the party participated in the proceedings below; and (2) the equities favor hearing the appeal.”
Citibank Int’l v. Collier

- Traino, Inc. , 809 F.2d 1438, 1441 (9th Cir. 1987). T hat formulation, though mistakenly characterizing the issue as one of “standing,” cf. Devlin , 536 U.S. at 6

– 7 (distinguishing the issues ), establishes necessary conditions

, but does not elaborate on what concrete
circumstances will suffice. The Fifth Circuit has used language similar to the Ninth ’s , with the added consideration
of whether the nonparty has a personal stake in the outcome and an added warning that the excepti on does not
mean that “ parties will be given a free pass to avoid complying with the rules of intervention. ” S.E.C. v. Forex Asset Mgmt. LLC , 242 F.3d 325, 329

– 30 (5th Cir. 2001)

.The Seventh Circuit and the Third Circuit have elaborated on an aspect of the issue that is significant to this case. They have stressed the importance of whether the

non party seeking appeal has an alternative route to redress its grievance. See, e.g.

, S.E.C. v. Enter. Tr. Co. , 559 F.3d 649, 651 (7th Cir. 2009) (discussing cer tain cases where other circuits have allowed a nonparty appeal and concluding: “What these situations have in common is that the judicial decision concludes the rights of the affectedperson, who cannot litigate the issue in some other forum.”); Nat’l Foot ball League Players’ Concussion Injury Litig. , 923 F.3d 96, 106 n.7 (3d Cir. 2019) (“The equities favor allowing the appeal because the [nonparties] have no Case: 20-1202 Document: 89 Page: 7 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 8

way to challenge the District Court’s orders, which affected their rights, apart from appealing her e.”).

We need not decide here whether a nonparty can ever appeal in a case where the would

- be appellant has another, statutorily prescribed, path to resolve its complaint. We, instead, apply relevant factors gleaned from our sister circuits’ case law to the facts of this case and determine that Target’s appeal should be dismissed. Those factors are : (1) whether the nonparty participated in the proceedings below; (2) whether the nonparty has a personal stake in the

outcome ; (3) whether the equities favor hearing the appeal; and (4) whether the nonparty has an alternative path to appellate review of the decision

. Applying those factors to this case, there can be no debate that Target participated in the proceeding before the
CIT , albeit belatedly . It filed several motions and the CIT

express ly considered Target’s arguments pursuant to CITRule 71. There is also no question that Target has a personal sta k e in this case. The CIT’s reliquidation order caused Target to pay significantly higher duties on the subject entries. But the last two factors clearly cut the other

way.
We find that the equities do not favor Target’s request for exceptional treatment. When evaluating the balance of equities, courts have considered, inter alia, whether the nonparty appeal will frustrate another legal principle. See Walker v. City of Mesquite , 858 F.2d 1071, 1074 (5th Cir. 1988) ( in the class action context, allowing non named classmembers appeal rights could frustrate the purpose of Federal Rule of Civil Procedure 2 3). And courts have expressed serious concern s about the prospect of nonparty appeals hindering the purpose s and requirement s of intervention. See Forex Asset Mgmt.

, 242 F.3d at 330 ; cf. Osage
Wind , 871 F.3d at 108 6 (a nonparty seeking to appeal must
“d e monstrate cause for why he did not or could not intervene in the proceedings below ”) . Notably, in U.S. ex rel. Case: 20-1202 Document: 89 Page: 8 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 9

Eisenstein v. City of New York , 556 U.S. 928, 933 (2009)

, the Supreme Court rejected an argument (in the qui tam context) for disregarding the distinction between parties and nonparties, concluding that “i ntervention is the requisite method for a nonparty to become a party to a lawsuit. ”

Target’s nonparty appeal is in tension with the ordinary process of intervention

. Here, Tar get began to follow the required procedure before the CIT by moving to intervene, but then deviated from the normal path by cho o s ing not to contest on appeal the CIT’s denial of its motion. Asnoted, Target presents us with no argument on the propriety of its request to intervene. Had Target argued that it should have been allowed to intervene, regardless of ourresolution of that issue, we would be in a position to confidently conclude that Target’s nonparty appeal does not frustrate the principles and p rocedures underlying intervention. Instead, Target effectively asks that we ignore that it sought intervention and skip directly to considering
this case as a nonparty appeal. We decline to do so . To ensure that the exception s to the rule against nonpar ty appeals remain narrow, we conclude that equity require d Target

, whose motion to intervene was denied, to appeal
and contest the denial of intervention. As Target failed to follow that procedure and does not meaningfully defend
that choice , we conclude that the equities do not favor allowing Target’s nonparty appeal. 1

Finally, it is undisputed that Target has another, statutorily prescribed, path to redress its grievance without resort to a nonparty appeal. Target has, in fact, followed that

1 It is unclear, moreover, whether the equities favor making exceptions for a nonparty who received a windfall from Customs’ failure to properly implement a court order, so that it may contest correction of that error through a procedurally improper route. We need not reach this question in light of Target’s procedural errors. Case: 20-1202 Document: 89 Page: 9 Filed: 02/16/2021HOME PRODUCTS INTERN ATIONAL v. UNITED STATES 10

path. Upon reliquidation of the subject entries, Target protested Customs’ actions pursuant to 19 U.S.C. § 1514

. Target’s Opening Br. 20. If Customs denies Target’s protest,Target will be able to commence an action in the CIT challenging that decision. See 28 U.S.C. § § 1581(a) , 2637(a)

. And

, if the CIT resolves that case adversely to Target, Target, as a party to the CIT action, will be able to seek review
in this court. S ee 28 U.S.C. § 1295(a)(5).

Target contends that requiring it to continue down that path will be a waste of resources, given the amount of time the proceeding will take and the fact that it “is inevitable a new case will land right back with this Court.” Target’s Suppl. Br. 8. While we recognize some inefficiency in that process, it is a problem of Target’s own creation. Target, although a nonparty, chose to involve itself at the tail

- end
of this CIT proceeding. Its involvement resulted in an additional two years of litigation before the CIT and over a

year pending appeal in this court. Had Target chosen tofollow the procedure prescribed by statute, such that reliquidation would have occurr ed in November 2017, Target may well have reached the point of appeal in its own case. Target’s choice to risk a dead

- end road, rather than followthe clear path laid out by statute, does not create an exceptional circumstance warranting nonparty appeal.

III. C ONCLUSION

That Target and the government would like us to review the substance of this appeal now is not enough to overcome the strong presumption against nonparty appeals. Target has not established exceptional circumstances indicating the propri ety of a nonparty appeal in this case

. Accordingly, w e dismiss

. DISMISSED

C OSTS

Costs to Home Products International, Inc

. Case: 20-1202 Document: 89 Page: 10 Filed: 02/16/2021