NLMK Pennsylvania, LLC v. United States

Slip Op. 21-162
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Claire R. Kelly, Judge
Court No. 21-00507
MEMORANDUM AND ORDER
[Denying proposed defendant-intervenor United States Steel Corporation’s motion to
intervene and motion to stay.]
Dated: December 3, 2021
Luke A. Meisner, Roger B. Schagrin, Jeffrey D. Gerrish, and Kelsey M. Rule, Schagrin
Associates, of Washington, D.C., for proposed defendant-intervenor.
Sanford Litvack, Andrew L. Poplinger, and R. Matthew Burke, Chaffetz Lindsey LLP,
of New York, NY, for plaintiff.
Tara K. Hogan, Assistant Director, and Meen Geu Oh, Senior Trial Counsel,
Commercial 	Litigation 	Branch, 	Civil 	Division, 	U.S. 	Department 	of 	Justice, 	of
Washington, D.C., for defendant. 	Also on the brief were Brian Boynton, Acting
Assistant Attorney General, and Patricia M. McCarthy, Director. Of counsel on the
brief was Kenneth Kessler, Office of Chief Counsel for Industry & Security, U.S.
Department of Commerce, of Washington, D.C.
Kelly, Judge: Before the court are proposed defendant-intervenor United
States Steel Corporation’s (“U.S. Steel”) motions to intervene as a defendant-
intervenor and to stay further proceedings in this action pending U.S. Steel’s appeal
to the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) of this Court’s
NLMK PENNSYLVANIA, LLC,
Plaintiff,
v.
UNITED STATES,
Defendant.
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denial of U.S. Steel’s motion to intervene in a different action. See Mot. to Intervene
by [U.S. Steel] as Def.-Intrvnr., Oct. 27, 2021, ECF No. 14 (“Mot. to Intervene”); 1 Mot.
to Stay Proceedings Pending Appeal, Oct. 27, 2021, ECF No. 15 (“Mot. to Stay”); see
also N. Am. Interpipe, Inc. v. United States, 519 F. Supp. 3d 1313 (Ct. Int’l Trade
2021) (“NAI”).
Plaintiff 	NLMK 	Pennsylvania, 	LLC 	(“NLMK”) 	commenced 	this 	action
challenging the U.S. Department of Commerce’s (“Commerce”) denial of NLMK’s
requests for certain imports of steel products to be excluded from tariffs imposed on
steel imports pursuant to Section 232 of the Trade Expansion Act of 1962, as amended
(“Section 232”), Pub. L. 87-794, § 232, 76 Stat. 872, 877 (1962), codified in various
sections of Titles 19 and 26 of the U.S. Code. See Compl., ¶ 1, Sept. 8, 2021, ECF No.
2. 	U.S. Steel, a domestic producer of steel mill products which opposed NLMK’s
exclusion requests during the proceedings before Commerce, contends that it has a
right to intervene under CIT Rule 24(a) and, alternatively, that it should be permitted
to intervene under CIT Rule 24(b). 	Mot. to Intervene at 4–8, 9–11. 	U.S. Steel also
moves for a stay of all proceedings in this action pending U.S. Steel’s appeal of NAI.
See Mot. to Stay. 	NLMK opposes the Motion to Intervene and the Motion to Stay.
[NLMK’s] Opp’n to [Mot. to Intervene], Nov. 17, 2021, ECF No. 23 (“NLMK Intrvntn.
1 Pursuant to U.S. Court of International Trade (“CIT”) Rule 12(c), U.S. Steel’s Motion
to Intervene is accompanied by an answer setting out the defense that U.S. Steel
seeks to interpose. 	Answer to Compl. of [U.S. Steel], Oct. 27, 2021, ECF 14-1
(“Proposed Answer”).
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Opp.”); 	[NLMK’s] Opp’n to [Mot. to Stay], Nov. 17, 2021, ECF No. 24 (“NLMK Stay
Opp.”). Defendant United States (the “Government”) opposes U.S. Steel’s Motion to
Intervene to the extent that U.S. Steel contends that it has a right to intervene, but
the Government takes no position on U.S. Steel’s request to be permitted to intervene
under CIT Rule 24(b). 	Def.’s Omnibus Resp. to [Mot. to Intervene and Mot. to Stay],
2–3, Nov. 17, 2021, ECF No. 25 (“Def. Br.”). 	The Government further opposes U.S.
Steel’s Motion to Stay. Id. at 2. For the reasons that follow, the Motion to Intervene
and the Motion to Stay are denied.
BACKGROUND
NLMK is a producer of finished steel products including coil and sheet used in
a variety of industrial applications. 	Compl. ¶ 2. 	NLMK alleges that it requires a
steady and substantial supply of both 200mm (8 inch) and 250 mm (10 inch) semi-
finished steel slab (“steel slab”) to manufacture its products. 	Id. ¶¶ 2, 5–6. 	NLMK
contends that it purchases as much steel slab as it can from domestic producers, but
it has never been able to procure more than 20% of its monthly requirement of 8-inch
slab from the U.S. market and 10-inch slab is not available in the U.S. market. 	Id.
¶¶ 3, 5–6. NLMK imports the remaining steel slab that it requires. Id. ¶¶ 3, 6.
On March 8, 2018, President Donald J. Trump issued Proclamation 9705,
imposing 	additional 	tariffs 	on 	steel 	imports 	and 	instructing 	the 	Secretary 	of
Commerce to grant requests for exclusions for, inter alia, any steel product that is
not “produced in the United States in a sufficient and reasonably available amount
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or of a satisfactory quality” (a “Section 232 Exclusion”). Proclamation 9705 of March
8, 2018, 83 Fed. Reg. 11625, 11627 (March 15, 2018) (Adjusting Imports of Steel Into
the United States) (“Proclamation 9705”). 	Commerce subsequently published rules
for requesting Section 232 Exclusions and for the domestic industry to object to such
requests. 	See Requirements for Submissions Requesting Exclusions From the
Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel Into
the United States and Adjusting Imports of Aluminum Into the United States, 83
Fed. Reg. 12106 (March 19, 2018) (Filing of Objections to Submitted Exclusion
Requests for Steel and Aluminum); Supplement No. 1 to Part 705—Requirements for
Submissions Requesting Exclusions From the Remedies Instituted in [Proclamation
9705], 83 Fed. Reg. 46056 (Sept. 11, 2018); Supplement No. 1 to Part 705—
Requirements for Submissions Requesting Exclusions From the Remedies Instituted
in [Proclamation 9705], 84 Fed. Reg. 26757 (June 10, 2019); Supplement No. 1 to Part
705—Requirements for Submissions Requesting Exclusions From the Remedies
Instituted in Presidential Proclamations Adjusting Imports of Steel Articles Into the
United States, 85 Fed. Reg. 64382 (Oct. 13, 2020); Supplement No. 1 to Part 705—
Requirements for Submissions Requesting Exclusions From the Adjustment of
Imports of Aluminum and Steel Imposed Pursuant to [Section 232], 85 Fed. Reg.
81073 (Dec. 14, 2020). 	The interim final rule adopted by Commerce sets forth the
procedures for Section 232 Exclusion requests, and permits domestic producers to
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object to a Section 232 Exclusion request if the domestic producer can “immediately” 2
supply a “sufficient and reasonably available and amount” of the imported product.
15 C.F.R. § Pt. 705, Supp. 1(c)–(d).
NLMK submitted Section 232 Exclusion requests in 2018, 2020, and 2021
alleging that it was unable to source the steel slab it needed from the U.S. market.
Compl. ¶¶ 7, 10–12. 	This case involves only the 54 Section 232 Exclusion requests
that NLMK submitted to Commerce in July 2020, March 2021, and April 2021 (the
“Exclusion Requests”). 3 	Id. ¶¶ 10–12. 	U.S. Steel objected to, and Commerce
subsequently denied, all of the Exclusion Requests. 4 	Id. ¶¶ 11–12. 	NLMK brought
this action to challenge Commerce’s denials of the Exclusion Requests, asserting that
the Section 232 Exclusion request review process Commerce undertook to deny
NLMK’s Section 232 Exclusion Requests was arbitrary, capricious and contrary to
law. 	Id. ¶¶ 27, 32. 	In support of its conclusion, NLMK alleges that Commerce did
not verify U.S. Steel’s objections and ignored NLMK’s evidence that it could not
2 An objecting domestic producer can supply a product immediately if it “is currently
being produced or could be produced ‘within eight weeks’ in the amount needed in the
business activities of the user of steel in the United States described in the exclusion
request.” 	15 C.F.R. § Pt. 705, Supp. 1(c)(6)(i). 	The objecting domestic producer is
required to “identify how it will be able to produce the article [for which the Section
232 Exclusion request applies] within eight weeks” if it is not currently producing the
article. Id. § Pt. 705, Supp. 1(d)(4).
3 Fifty-two of the Exclusion Requests were for 10-inch slab and two were for 8-inch
slab. Compl. ¶¶ 11–12.
4 Other domestic steel producers objected to the Exclusion Requests as well, but those
producers are not parties to this action and do not seek to intervene. 	Thus, for the
purposes of these motions, the court does not refer to the other domestic producers.
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obtain enough steel slab from domestic sources. Id. ¶ 14. NLMK further alleges that
Commerce based its denials in part on ex parte communications with U.S. Steel that
flouted the procedures for objecting to Section 232 Exclusion requests, and Commerce
did not provide adequate reasons for the denials. Id. ¶¶ 14, 18.
U.S. Steel now seeks to intervene as a defendant in order to defend its
purported interest in upholding Commerce’s denials of the Exclusion Requests and
to stay this action pending U.S. Steel’s appeal of NAI. See Mot. to Intervene and Mot.
to Stay. For the reasons set forth below, U.S. Steel’s motions are denied.
STANDARD OF REVIEW
CIT Rule 24(a)(2) provides, in relevant part,
On a timely motion, the court must permit anyone to intervene who: . . .
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.
CIT Rule 24(a)(2). The court will grant a motion to intervene under CIT Rule 24(a)(2)
when the movant establishes the following four elements: (1) the motion is timely; (2)
the movant asserts a legally protectable interest in the property at issue; (3) the
movant’s interest “must be of such a direct and immediate character that the
intervenor will either gain or lose by the direct legal operation and effect of the
judgment”; and (4) the movant’s interest will not be adequately represented by the
government. 	Wolfsen Land & Cattle Co. v. Pac. Coast Fed’n of Fisherman’s
Associations, 695 F.3d 1310, 1315 (Fed. Cir. 2012) (emphasis in original) (internal
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quotation marks omitted). The court will permit a party to intervene under CIT Rule
24(b)(1)(A) if the proposed intervenor has a “conditional right to intervene [under] a
federal statute.” 	U.S. Steel contends that 28 U.S.C. § 2631(j)(1) provides such a
conditional right. Mot. to Intervene at 9–10. That statute provides that any person
that will be adversely affected or aggrieved by a decision in an action before the CIT
may intervene with leave of the court. 	28 U.S.C. § 2631(j)(1). 	Once a proposed
intervenor demonstrates that it will be adversely affected or aggrieved, the court
must 	“consider 	whether 	the 	intervention 	will 	unduly 	delay 	or 	prejudice 	the
adjudication of the rights of the original parties. Id. § 2631(j)(2).
Granting a motion to stay, on the other hand, is within the discretion of the
court. Cherokee Nation of Oklahoma v. United States, 124 F.3d 1413, 1416 (Fed. Cir.
1997). The court must weigh the competing interests when deciding a motion to stay.
See Landis v. North Am. Co., 299 U.S. 248, 254–55 (1936). 	If there is “even a fair
possibility” that the stay will damage a nonmovant, the movant “must make out a
clear case of hardship or inequity in being required to go forward.” Id. at 255. “Only
in rare circumstances will a litigant in one cause be compelled to stand aside while a
litigant in another settles the rule of law that will define the rights of both.” Id.
DISCUSSION
U.S. Steel contends that it has a right to intervene because its interests will be
directly affected by the court’s decision in this action. 	Mot. to Intervene at 3–6.
Specifically, U.S. Steel argues that a ruling in favor of NLMK would “adversely
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impact the strides U.S. Steel has made since the implementation of the Section 232
steel action to increase its capacity utilization and contribute to the strengthening of
U.S. national security.” Id. at 5. U.S. Steel further asserts that it has a “heightened
interest” as a result of an action NLMK commenced against U.S. Steel in U.S. District
Court for the Western District of Pennsylvania. 	Id.; see also NLMK Pennsylvania,
LLC v. United States Steel Corporation, W. Dist. Penn. Case No. 2:21-cv-00273-WSS
(the “WDPA Action”). 5 According to U.S. Steel, the WDPA Action gives U.S. Steel an
interest in “ensuring that the record in this action is both complete and accurate, and
ensuring that the ultimate outcome in this case does not have any negative impact
on the [WDPA Action].” 	Mot. to Intervene at 5–6. 	U.S. Steel also asserts a
participatory interest in this action based on its objections to the Exclusion Requests
as well as beneficiary interest as an alleged intended beneficiary of Section 232. Id.
at 8. 	Alternatively, U.S. Steel contends that its Motion to Intervene should be
granted pursuant to the court’s discretion to permit intervention under CIT Rule
24(b) because U.S. Steel will be adversely affected or aggrieved by a ruling in favor of
NLMK and no party will be prejudiced by U.S. Steel’s intervention. 	Id. at 8–11.
Finally, U.S. Steel asks the court to stay these proceedings pending its appeal of NAI
5 According to U.S. Steel, NLMK alleges in the WDPA Action that U.S. Steel
“defrauded 	Commerce, 	causing 	the 	agency 	to 	wrongfully 	deny 	all 	of 	NLMK’s
exclusion requests.” Mot. to Intervene at 5; see also NLMK Intrvntn. Opp. at 14 (the
WDPA Action “alleges that U.S. Steel engaged in unfair competition by making
various misrepresentations to [Commerce]” (internal quotation marks omitted)).
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to conserve judicial resources and because NLMK will not be prejudiced by a stay.
Mot. to Stay at 4–5.
NLMK opposes the Motion to Intervene on the grounds that U.S. Steel is
collaterally estopped from re-litigating the issues already decided in NAI. 	NLMK
Intrvntn. Opp. at 2–7. NLMK further opposes the Motion to Intervene on the grounds
that U.S. Steel does not meet the requirements for intervention by right because the
Government can adequately represent U.S. Steel’s interests in this action, U.S. Steel
has no direct interest in the outcome of this action, and that the WDPA Action does
not provide any interest because the record in this case was created at the agency
level and is now closed. Id. 7–15. Finally, NLMK contends that U.S. Steel should not
be permitted to intervene because it will not be aggrieved by any decision in this
action, and because U.S. Steel’s intervention would prejudice NLMK by delaying the
final resolution of the action. Id. 15–17. NLMK also opposes the Motion to Stay on
the grounds that a stay would prejudice NLMK by potentially delaying the return of
$130 million that NLMK could use in its business operations, that U.S. Steel failed
to meet its burden of demonstrating that it would be prejudiced without a stay, and
that 	U.S. 	Steel’s 	purported 	justification 	for 	a 	stay—to 	conserve 	resources—is
insufficient and unsupported. NLMK Stay Opp. at 3–5.
The Government opposes U.S. Steel’s Motion to Intervene as of right because
“manufacturers, such as U.S. Steel, do not meet the standard for intervention as of
right”, U.S. Steel identifies no interests that qualify for intervention, and “any
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interest that they have is not of such a direct and immediate character that they will
gain or lose by direct effect of the judgment.” Def. Br. at 2. The Government further
contends that U.S. Steel has not met its burden to demonstrate a stay is necessary.
Id. Finally, the Government takes no position on U.S. Steel’s request to be permitted
to intervene under CIT Rule 24(b). Id. at 3.
I. 	Intervention as of Right
U.S. Steel has not met its burden to intervene as of right because it does not
have a legally protectable interest that will be directly affected by the outcome of this
action. 	U.S. Steel’s asserted interest in this action amounts to a speculative
contention that it will suffer economic harm in the form of potential lost sales if the
court 	ultimately 	rules 	in 	favor 	of 	NLMK. 	Moreover, 	U.S. 	Steel’s 	purported
participatory interest resulting from its objection to the Exclusion Requests is
unsupported by the statutory and regulatory scheme governing Section 232 tariffs,
which also do not convey any beneficiary interest upon U.S. Steel.
U.S. Steel contends that its interests in developing the domestic steel industry
in the name of national security will be harmed if the Government is ordered to
refund to NLMK the Section 232 duties collected for the entries at issue in the
Exclusion Requests. Mot. to Intervene at 5. 	Assuming U.S. Steel will indeed lose an
advantage as a result of a ruling in NLMK’s favor, that harm is both economic and
indirect. 	See Am. Maritime Transp., Inc. v. United States, 870 F.2d 1559, 1561–62
(to 	intervene, 	interest 	in 	action 	must 	be 	direct, 	and 	economic 	interests 	are
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insufficient). This action concerns a limited number of imports, the duties for which
have already been paid by NLMK; NLMK seeks a refund of the Section 232 duties for
those entries. Compl. ¶ 31, Request for Relief. U.S. Steel does not identify any non-
economic harm that it will endure as a result of NLMK receiving refunds. Moreover,
it is unclear from U.S. Steel’s papers what effect a ruling in this action would have as
the Exclusion Requests relate to past entries. 6 See NLMK Inrvntn. Opp. at 16. U.S.
Steel does not assert that the projects for which NLMK imported the steel that is the
subject of the Exclusion Requests are still pending such that U.S. Steel could stand
to gain or lose any sales based on this court’s ruling, see Mot. to Intervene; Proposed
Answer, and NLMK does not challenge the legality of the Section 232 tariffs
generally. 	See Compl. 	Therefore, U.S. Steel failed to show that it has any direct
interest in the outcome of this case.
U.S. Steel further contends that it has a legally protectable interest in the
outcome of this case based on its participation as an objector to NLMK’s Exclusion
Requests before Commerce. 	Mot. to Intervene at 4. 	However, U.S. Steel’s limited
right to object to the Exclusion Requests at the agency level does not extend to
6 At best, U.S. Steel speculates that if NLMK were to prevail in this case, and if
NLMK were to obtain a future successful exclusion request on the same product
(albeit on a different administrative record), and if U.S. Steel in the future were able
to develop the ability and desire to compete for that business, U.S. Steel would be
economically harmed.
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participating in this action. 7 U.S. Steel does not have a statutory right to participate
in the Section 232 Exclusion request process. 	See 19 U.S.C. § 1862. 	At most,
Congress provided that Commerce should seek public comment “if it is appropriate.”
Id. § 1862(b)(2)(A)(iii). U.S. Steel’s right to object to NLMK’s Exclusion Requests is a
creation of Commerce itself, and by its own limited terms plainly does not create any
right or “legally protectable interest” to participate in any action before the CIT. See
NAI, 519 F. Supp. 3d at 1324–25.
Finally, U.S. Steel contends that it has a beneficiary interest because it is an
“expressly identified beneficiary of Section 232 tariffs on steel articles.” 	Mot. to
Intervene at 8. U.S. Steel cites no authority for this position. See id. Moreover, the
goal of Section 232 is to protect the national security of the United States; any benefit
to the domestic industry is secondary, and any benefit to specific domestic producers
is incidental. See 19 U.S.C. § 1862. As discussed, Section 232 provides no statutory
authority for U.S. Steel to intervene as a matter of right whether U.S. Steel frames
its purported interest as participatory or beneficiary. Id.
U.S. Steel contends that it is “uniquely qualified to apprise the Court of the
potential harm to the domestic industry if this action is allowed to proceed and the
product exclusions are granted.” 	Mot. to Intervene at 7. 	However, “the potential
7 Contrast the limited scope of 15 C.F.R. § Pt. 705, Supp. 1(d)–(g) with the broad
statutory 	and 	regulatory 	rights 	interested 	parties 	have 	in 	antidumping 	and
countervailing 	duty 	investigations. 	See, 	e.g., 	19 	U.S.C. 	§ 	1671a; 	28 	U.S.C.
§ 2631(j)(1)(B); 19 C.F.R. §§ 351.102(b)(29), 351.201(a), 351.301.
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harm to the domestic industry” is not an issue before the court. As discussed, NLMK
challenges Commerce’s decisions to deny the Exclusion Requests as arbitrary and
capricious because NLMK alleges that the uncontroverted evidence demonstrated
that the domestic industry could not supply the steel slab NLMK needed. Compl. ¶¶
14, 18, 27. Moreover, exclusion requests are granted or denied based only on whether
“an article is not produced in the United States in a sufficient, reasonably available
amount, and of a satisfactory quality, or for specific national security considerations.”
15 C.F.R. § Pt. 705, Supp. 1(c)(5)–(6)(ii). “Potential harm to the domestic industry” is
not a basis for an exclusion request to be denied. 	Id. § Pt. 705, Supp. 1(c)(6)(i)–(iii),
(d)(4).
U.S. Steel asserts that its interest in the WDPA Action gives it an interest in
this action. Mot. to Intervene at 7. In support of this theory, U.S. Steel contends that
it has “an ongoing and direct interest in representing its own interests in this case,
ensuring that the record in this action is both complete and accurate, and ensuring
that the ultimate outcome in this case does not have any negative impact on the
[WDPA Action].” Id. at 5–6. U.S. Steel further claims that “it is imperative that U.S.
Steel 	be 	able 	to 	provide 	information 	and 	evidence 	on 	its 	own 	behalf 	in 	this
proceeding.” Id. at 6. This line of argument relies on a fundamental misapprehension
of the present action. 	NLMK has asked the court to review Commerce’s denials of
the Exclusion Requests. 	Compl. ¶ 1. 	The court’s review of Commerce’s decisions is
based solely on the record developed at the agency level; the court will not entertain
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submissions of new evidence or find facts. 	See 28 U.S.C. § 2640(e); 5 U.S.C. § 706.
The U.S. District Court for the Western District of Pennsylvania (“WDPA”), on the
other hand, will accept submissions of evidence and find its own facts if it finds
NLMK’s complaint is legally sufficient. 	U.S. Steel does not explain what if any
precedential value this court’s determination of whether Commerce acted contrary to
law would have in the WDPA action, and the WDPA will certainly make its own
factual findings independent of this Court. 	The facts relevant to this action are set
forth in the administrative record. 	See 5 U.S.C. § 706. 	Therefore, U.S. Steel’s
purported interest based on the WDPA Action is insufficient to provide U.S. Steel
with a right to intervene. Moreover, the Government is perfectly capable of defending
the administrative record developed by Commerce. 8
II. 	Permissive Intervention
U.S. Steel also fails to persuade the court that it should be permitted to
intervene. 	U.S. Steel will not be aggrieved or adversely affected by any decision in
this action because the only relief sought in this action is a refund of duties already
paid on a limited number of entries. 	U.S. Steel’s claim that a decision in favor of
8 U.S. Steel contends that the Government will not adequately represent U.S. Steel’s
interests because the Government has settled or mediated similar Section 232
Exclusion cases. Mot. to Intervene at 7. Since U.S. Steel has not identified a legally
protectable interest that will be directly affected by the outcome of this action that is
separate from the Government’s interest, U.S. Steel cannot complain that the
Government’s hypothetical attempt to mediate its own interests harms U.S. Steel.
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NLMK will have an effect on future entries subject to Section 232 tariffs is mistaken. 9
Moreover, U.S. Steel’s assertions that a ruling in favor of NLMK would have vast
repercussions on the domestic steel market are speculative and irrelevant.
CIT Rule 24(b)(1)(A) 10 provides that:
On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute.
No party disputes that U.S. Steel’s motion is timely, so the court will only analyze the
other requirements of CIT Rule 24(b)(1).
U.S. Steel asserts that it meets the requirements of CIT Rule 24(b)(1)(A)
because 28 U.S.C. § 2631(j)(1) gives U.S. Steel a conditional right to intervene. Mot.
to Intervene at 9–10. 	Section 2631(j)(1) provides, “[a]ny person who would be
adversely affected or aggrieved by a [CIT] decision” may seek the Court’s permission
to intervene. 	28 U.S.C. § 2631(j)(1). 	U.S. Steel reasons that it will be aggrieved or
adversely affected by the outcome of this case because it objected to the Exclusion
Requests 11 and because a ruling in favor of NLMK “would result in an increase in
9 If NLMK, or any other importer, seeks Section 232 Exclusions on future entries,
U.S. Steel will have the opportunity to voice its objections pursuant to the interim
final rules promulgated by Commerce. 	Commerce must decide whether any future
entries should or should not be excluded on case-by-case basis by determining if the
domestic industry is capable of supplying the goods at issue. 	15 C.F.R. § Pt. 705,
Supp. 1(c)–(g).
10 U.S. Steel only moves for permissive intervention under CIT Rule 24(b)(1)(A). Mot.
to Intervene at 8–11.
11 As already discussed, U.S. Steel’s objections to the Exclusion Requests do not confer
any right to participate in this court proceeding, and furthermore do not confer any
protectable interest in the outcome of this action.
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tariff-free 	imports 	of 	directly 	competitive 	products 	and 	directly 	competitive
derivatives that would harm U.S. Steel by suppressing prices and eliminating sales
opportunities.” 	Mot. 	to 	Intervene 	at 	10. 	U.S. 	Steel 	misstates 	the 	potential
consequences of this case. 	The imports at issue have already entered and if NLMK
succeeds in this case it will receive a refund. Compl. ¶ 31. U.S. Steel does not contend
that it produced the steel slab for which NLMK sought exclusions. 	See Mot. to
Intervene; Propsoed Answer. 	Indeed, NLMK paid the increased Section 232 tariffs
to import the slab it needed. 	Compl. ¶¶ 10–12, 31, Request for Relief. 	Any future
disputes relating to Section 232 Exclusions will be decided by Commerce on a case-
by-case basis. See 15 C.F.R. § Pt. 705, Supp. 1.
Moreover, U.S. Steel’s assertion that a ruling refunding duties to NLMK would
result in future tariff-free imports, suppressed prices, or lost sales opportunities is
unsupported. 	In support of its argument regarding the purported broad economic
impact of a ruling in favor of NLMK, U.S. Steel offers nothing more than a few
conclusory sentences in its Motion to Intervene. 	See Mot. to Intervene at 10.
Likewise, in its Proposed Answer, U.S. Steel fails to allege any facts that would lead
to the conclusion that this case would have an impact on anything other than the
limited entries to which the Exclusion Requests relate. See Proposed Answer. U.S.
Steel falls far short of its burden to demonstrate the type of injury it attempts to rely
on. See Gen. Electric Co. v. United Technologies Corp., 928 F.3d 1349, 1353–54 (Fed.
Cir. 2019) (no standing to appeal based on purported competitive injuries without
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Court No. 21-00507 	Page 17
evidence of lost business or lost opportunities). 	Although U.S. Steel need not
demonstrate standing, conclusory statements are insufficient to show that it will be
aggrieved or adversely affected. 12
12 NLMK asserts that the standing analysis set forth in NAI should apply here.
NLMK Intrvntn. Opp. at 7, 16. 	Standing is not an issue in this case. Generally,
standing is a requirement for plaintiffs, not defendants, and U.S. Steel seeks to
intervene as a defendant. 	See Virginia House of Delegates v. Bethune-Hill, 139 S.
Ct. 1945, 1952 (2019) (defendant-intervenor “did not need to establish standing” to
participate but did need standing to appeal). U.S. Steel makes no claim and seeks no
affirmative relief, and therefore does not invoke this Court’s jurisdiction. See
Proposed Answer. The cases relied on in NAI and PrimeSource Bldg. Prods., Inc. v.
United States, 494 F. Supp. 3d 1307, 1318–20 (Ct. Int’l Trade 2021) (Baker, J.,
concurring), mostly discuss intervenor standing in the context of either proposed
plaintiff-intervenors 	or 	defendant-intervenors 	seeking 	to 	invoke 	appellate
jurisdiction. 	See Town of Chester, N.Y. v. Laroe Estates, 137 S. Ct. 1645 (2017)
(plaintiff-intervenor); Canadian Wheat Bd. v. United States, 33 C.I.T. 1204 (2009)
(same); Samsung Electronics Co. v. Rambus, Inc., 523 F.3d 1374 (Fed. Cir. 2008)
(plaintiff challenged its own standing to appeal order denying attorneys’ fees; no issue
of intervenor standing); Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania, 140 S. Ct. 2367 (2020) (defendant-intervenor’s standing to appeal);
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (same); Diamond v.
Charles, 476 U.S. 54 (1986) (same). Only one case cited in either NAI or PrimeSource
discusses the need for a proposed defendant-intervenor to demonstrate standing to
defend in district court, and that case expressly did not decide the issue. 	See
McConnell v. Fed. Election Comm’n, 540 U.S. 93, 233 (2003), overruled in part on
other grounds, Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
McConnell’s cursory discussion of the defendant’s standing is dicta. 	Moreover,
defendants are generally not required to have standing at the district court level. But
see City of Chicago v. Fed. Emergency Mgmt. Agency, 660 F.3d 980 (7 th Cir. 2011)
(holding that an intervenor must satisfy standing requirements if it seeks relief
different than the parties already in the case; the proposed intervenors, while seeking
to intervene as defendants, also sought to interpose what amounted to a crossclaim
for a declaratory judgment interpreting their contracts with the defendant, which
required standing to assert). 	Defendants do not usually invoke a trial court’s
jurisdiction and do not claim to have been injured unless they seek affirmative relief.
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Court No. 21-00507 	Page 18
Even excusing the conclusory nature of U.S. Steel’s argument, the court does
not agree that the type of economic impacts of which U.S. Steel warns logically stem
from a ruling in favor of NLMK in this action. As discussed, this case involves duties
that were already paid for steel slab that was already imported and presumably used.
NLMK Intrvntn. Opp. at 16. 	U.S. Steel does not claim otherwise. 	NLMK does not
request that the court strike down all Section 232 tariffs on steel slab, only that the
specific entries at issue should be excluded. Thus, this case will not necessarily affect
future requests for exclusions from the Section 232 tariffs.
Finally, NLMK argues that U.S. Steel is collaterally estopped from intervening
in this case because NAI has already denied U.S. Steel’s attempts to intervene in
other Section 232 exclusion cases brought by other steel slab importers, in which U.S
Steel asserted the same intervention rights based on the same arguments. 	NLMK
Intrvntn. Opp. at 2–7. 	Because the court concludes that U.S. Steel has not met its
burden to demonstrate that it is entitled to intervene, the court need not address
NLMK’s defense that U.S. Steel is collaterally estopped from litigating these issues. 13
See Flex-Foot, Inc. v. CRP, Inc., 238 F.3d 1362, 1367 n.2 (Fed. Cir. 2001) (“collateral
estoppel is an affirmative defense” (internal quotation marks omitted)).
13 In any event, the court is skeptical of the applicability of the doctrine of collateral
estoppel to this case. Although the imported products appear to be the same as those
at issue in NAI, this proceeding is based on a different administrative record.
Moreover, U.S. Steel asserts additional alleged interests that accrued after the
Court’s decision in NAI, which could not be subject to collateral estoppel.
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Court No. 21-00507 	Page 19
III. 	Motion to Stay
Finally, the court denies U.S. Steel’s motion to stay. U.S. Steel contends that
this action should be stayed pending U.S. Steel’s appeal of NAI. 	Mot. to Stay at 1.
U.S. Steel devotes the majority of its argument to the merits of its pending appeal.
Id. at 2–4. 	Additionally, it contends that NLMK will not be prejudiced by a stay
because it has already paid the duties at issue, and that a stay is in the interest of
judicial economy. 	Id. at 4–5. 	U.S. Steel has not demonstrated that a stay is
warranted.
U.S. Steel’s first justification for a stay—that NLMK will allegedly not be
prejudiced—is both insufficient and incorrect. The lack of prejudice, by itself, is just
one factor that may be considered on a motion to stay. 	The court must balance the
competing interests weighing for and against a stay. 	Landis, 299 U.S. at 254–55.
Here, the parties have an interest to quickly resolve the dispute before the court.
NLMK commenced this action seeking a refund of some $130 million in duties that it
alleges should have been excluded from the Section 232 tariffs. Compl. ¶¶ 1, 31. In
this case, assuming NLMK is ultimately successful in this action, the delay in being
refunded that amount of money constitutes prejudice to NLMK inasmuch as it will
not have access to $130 million to which it is legally entitled. U.S. Steel, on the other
hand, has no direct legally protectable interest in this action or in staying these
proceedings. Moreover, having found that NLMK may be prejudiced by a stay, U.S.
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Court No. 21-00507 	Page 20
Steel was required to demonstrate “a clear case of hardship or inequity.” Id. at 255.
U.S. Steel failed to make such a showing.
U.S. Steel’s second justification for a stay is likewise inadequate. 	U.S. Steel
contends that a stay would “prevent the need for a lengthy round of briefing on [the
Motion to Intervene] and thus conserve the resources of the Court and the parties.”
Mot. to Stay at 4. 	But the parties already fully briefed the Motion to Intervene, so
granting a stay would not have any conservational effect with respect to the briefing
of that motion. 14 	Although a stay would temporarily conserve resources by pausing
any litigation of this action, the stay would not have any effect on judicial or party
resources in the long-run, as U.S. Steel only wants the action stayed until the Court
of Appeals has decided U.S. Steel’s appeal of NAI. Once that decision has been made,
the parties would be in the same position they are now, albeit with somewhat more
clarity on U.S. Steel’s participation. 	The NAI appeal will not resolve any part of
NLMK’s Complaint. Therefore, the proposed stay would not conserve any judicial or
party resources.
Finally, having found that U.S. Steel has not met its burden to show that it is
entitled or should be permitted to intervene, it is unclear the basis on which U.S.
Steel, as a non-party, is permitted to seek any affirmative relief from the Court. 	If
the Court of Appeals reverses NAI, U.S. Steel may renew its motion to intervene and
14 U.S. Steel does not specify how a stay would conserve resources other than the
erroneous contention that the parties would not have to brief the Motion to Intervene.
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Court No. 21-00507 	Page 21
explain to the court how any such Court of Appeals’ decision warrants a different
decision on U.S. Steel’s request to intervene in this case.
CONCLUSION
For the foregoing reasons, U.S. Steel’s Motion to Intervene and Motion to Stay
are denied, and it is
ORDERED that the Motion to Intervene and the Motion to Stay are DENIED.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	December 3, 2021
New York, New York
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