voestalpine High Performance Metals Corp. et al v. United States

Slip Op. 21-
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 20-03825
N. AM. INTERPIPE, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 20-03869
EVRAZ INC. NA, et ano.,
Plaintiffs,
v.
UNITED STATES,
Defendant.
Court No. 21-00005
AM/NS CALVERT LLC,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 21-00015
CALIFORNIA STEEL INDUS., INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 21-00027
VALBRUNA SLATER STAINLESS,
INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 21-00093
VOESTALPINE HIGH PERFOR-
MANCE METALS CORP., et ano.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: M. Miller Baker, Judge
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OPINION
[Denying motions to intervene.]
Dated: May 25, 2021
Matthew J. McConkey, Mayer Brown LLP of Washing-
ton, DC, on the papers for Proposed Defendant-Inter-
venor United States Steel Corporation in Court No.
20-3825.
Roger B. Schagrin, Christopher T. Cloutier, Elizabeth
J. Drake, and Luke A. Meisner, Schagrin Associates of
Washington, DC, on the papers for Proposed Defend-
ant-Intervenor 	United 	States 	Steel 	Corporation 	in
Court No. 20-3869.
Timothy C. Brightbill, Laura El-Sabaawi, Tessa V.
Capeloto, and Adam M. Teslik, Wiley Rein LLP of
Washington, DC, on the papers for Proposed Defend-
ant-Intervenors American Cast Iron Pipe Company,
Berg Steel Pipe Corp., Berg Spiral Pipe Corp., and
Stupp Corporation in Court No. 20-3869.
Thomas M. Beline and James E. Ransdell, Cassidy
Levy Kent (USA) LLP of Washington, DC, on the pa-
pers for Proposed Defendant-Intervenor United States
Steel 	Corporation 	in 	Court 	Nos. 	21-00005 	and
21-00015.
John R. Magnus, TradeWins LLC of Washington, DC,
on the papers for Proposed Defendant-Intervenor Elec-
tralloy/G.O. 	Carlson 	in 	Court 	Nos. 	21-00027 	and
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21-00093, as well as for Proposed Defendant-Interve-
nors Crucible 	Industries 	LLC, 	Ellwood City 	Forge
Company, and Ellwood Specialty Steel in Court No.
21-00093.
H. Deen Kaplan, Craig A. Lewis, and Nicholas W. La-
neville, Hogan Lovells US LLP of Washington, DC, on
the papers for Plaintiffs North American Interpipe,
Inc., in Court No. 21-00005 and Evraz Inc. NA and Ev-
raz Inc. NA Canada in Court No. 20-03869. Messrs.
Lewis and Laneville were also on the papers for Plain-
tiff 	Valbruna 	Slater 	Stainless, 	Inc., 	in 	Court 	No.
21-00027.
Paul C. Rosenthal, R. Alan Luberda, Joshua Morey,
and Julia A. Kuelzow, Kelley Drye & Warren LLP of
Washington, DC, on the papers for Plaintiff AM/NS
Calvert LLC in Court No. 21-00005.
Sanford Litvack, Andrew L. Poplinger, and R. Mat-
thew Burke, Chaffetz Lindsey LLP of New York, NY,
on the papers for Plaintiff California Steel Industries,
Inc., in Court No. 21-00015.
Matthew M. Nolan, Nancy A. Noonan, Leah N. Scar-
pelli, and Jessica R. DiPietro, Arent Fox LLP of Wash-
ington, DC, on the papers for Plaintiffs Voestalpine
High Performance Metals Corp. and Edro Specialty
Steels, Inc., in Court No. 21-00093.
Tara K. Hogan, Assistant Director, Brian M. Boynton,
Acting Assistant Attorney General, and Jeanne E. Da-
vidson, Director, Commercial Litigation Branch, Civil
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Division, U.S. Department of Justice of Washington,
DC, on the papers for Defendant United States in all
six cases. The following counsel were also on the pa-
pers for Defendant United States in the specified mat-
ters: Kyle S. Beckrich, Trial Attorney, Cases 20-03825
and 21-00005; Joshua E. Kurland, Trial Attorney,
Case 20-03869; Ann C. Motto, Trial Attorney, Cases
21-00015 and 21-00093; and Stephen C. Tosini, Senior
Trial Counsel, Case 21-00027. Of counsel on the pa-
pers for Defendant United States in all six matters
were Anthony D. Saler and Kimberly Hsu, Office of
Chief Counsel for Industry & Security, U.S. Depart-
ment of Commerce of Washington, DC.
Baker, Judge: In these six cases, domestic entities
that imported steel subject to national security tariffs
challenge the Department of Commerce’s denial of
their requests to be excluded (exempted) from paying
such tariffs and seek refunds of tariffs so paid. Several
domestic steel producers that objected to Plaintiffs’ ex-
clusion requests before Commerce now seek to inter-
vene in this litigation on the side of the government.
The Court concludes that the proposed intervenors are
ineligible to intervene as a matter of law and therefore
denies their motions for the reasons explained below.
Nevertheless, the Court reiterates its willingness to
entertain 	motions 	to 	appear 	as 	amici 	curiae. 	See
USCIT R. 76; see also PrimeSource Bldg. Prods., Inc.
v. United States, 494 F. Supp. 3d 1307, 1335 (CIT
2021) (Baker, J., concurring) (“[E]xperienced litigators
note that many of those benefits [of intervention] could
be achieved simply by . . . outsiders . . . present[ing]
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their views as amici.”) (alterations in original) (quot-
ing Caleb Nelson, Intervention, 106 Va. L. Rev. 271,
391 (2020)).
Statutory and Regulatory Background
Section 232 of the Trade Expansion Act of 1962 au-
thorizes the President to restrict imports of goods to
“[s]afeguard[ 	] national security.” 19 U.S.C. § 1862.
Pursuant to this authority, the President imposed a
25 percent ad valorem tariff on imports of certain steel
products. See Proclamation 9705 of March 8, 2018, Ad-
justing Imports of Steel into the United States, 83 Fed.
Reg. 11,625 (Mar. 15, 2018).
Proclamation 9705 also directed the Secretary of
Commerce to exclude from the proclamation’s duties
“any steel article determined not to be produced in the
United States in a sufficient and reasonably available
amount or of a satisfactory quality” and further au-
thorized the Secretary “to provide such relief based
upon 	specific 	national 	security 	considerations.” 	Id.
at 11,627 ¶ 3.
Commerce accordingly issued an interim final rule
authorizing U.S. importers to request an exclusion
from Section 301 duties of any “[a]rticle [that] is not
produced in the United States in a sufficient and rea-
sonably 	available 	amount, 	is 	not 	produced 	in 	the
United States in a satisfactory quality, or for a specific
national 	security 	consideration.” 	Requirements 	for
Submissions Requesting Exclusions from the Remedies
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Instituted in Presidential Proclamations Adjusting Im-
ports of Steel into the United States and Adjusting Im-
ports of Aluminum into the United States; and the Fil-
ing of Objections to Submitted Exclusion Requests for
Steel and Aluminum, 83 Fed. Reg. 12,106, 12,110
(Dep’t Commerce Mar. 19, 2018) (cleaned up).
Under this rule, exclusions do not relate to products
generally—rather, they apply to specified quantities of
subject products, and insofar as Commerce grants any
importer’s exclusion request, the exclusion applies for
one year or until the submitting party has imported
the full volume of material subject to the exclusion,
whichever comes first. U.S. Dep’t of Commerce, Bu-
reau of Industry and Security, 232 Exclusion Process
Frequently Asked Questions (FAQs) Version 1.01, at 12
(June 18, 2019) (also noting that companies may ob-
tain relief retroactive to the date the exclusion request
was submitted) (accessed May 24, 2021). 1 Exclusions
do not apply to other importers or purchasers, nor do
they apply to other products. 83 Fed. Reg. at 12,107
(“Approved exclusions will be made on a product basis
and will be limited to the individual or organization
that submitted the specific exclusion request . . . .”);
232 Exclusion Process FAQs, above, at 18 (“The com-
pany that filed the original exclusion request has ex-
clusive rights[,] and a granted exclusion is non-trans-
ferable.”).
1 	https://www.bis.doc.gov/index.php/documents/section-
232-investigations/2409-section-232-faq/file.
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The interim final rule also allows “[a]ny individual
or organization that manufactures steel articles in the
United States” to object to exclusion requests. Submis-
sions of Exclusion Requests and Objections to Submit-
ted Requests for Steel and Aluminum, 83 Fed. Reg.
46,026, 46,058 (Dep’t Commerce Sept. 11, 2018). Inso-
far as an objector asserts “that it is not currently pro-
ducing the steel identified in an exclusion request but
can produce the steel within eight weeks,” the objector
“must identify how it will be able to produce the article
within eight weeks.” Id.
Factual Background
Plaintiffs in these six cases are domestic manufac-
turers and one domestic distributor that import vari-
ous types of steel subject to Section 232 tariffs. 2 The
plaintiffs applied to Commerce for exclusions from the
tariffs, and other domestic companies objected to the
requests on various grounds, typically based on the
claim that they could satisfactorily produce all of, or
2 Plaintiff North American Interpipe imports steel pipe
products and then distributes them. See Case 20-3825,
ECF 5, at 3, 5. Plaintiffs Evraz, AM/NS Calvert, California
Steel, 	Valbruna, and 	Voestalpine 	manufacture 	various
steel products and import steel used in such manufactur-
ing. See Case 20-3869, ECF 35-2, at 4–5 (Evraz); Case 21-5,
ECF 2, at 3–4 (AM/NS Calvert); Case 21-15, ECF 2, at 2–3
(California Steel); Case 21-27, ECF 4, at 3–4 (Valbruna);
Case 21-93, ECF 2, at 3–5 (Voestalpine).
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sufficient substitutes for, the material that was the
subject of the exclusion requests.
Commerce subsequently denied all (or, in one case,
substantially all) of Plaintiffs’ exclusion requests on
various grounds. Significantly for present purposes,
the plaintiff(s) in each case paid the challenged duties
and imported the steel products in question notwith-
standing the exclusion denials. 3
The plaintiffs then brought these six suits under
this 	Court’s 	residual 	jurisdiction. 	See 	28 	U.S.C.
§ 1581(i). Plaintiffs assert Administrative Procedure
Act claims contending that Commerce failed to con-
sider relevant factors and evidence, failed to give ade-
quate explanations for its decisions, and in some in-
stances 	considered 	legally 	irrelevant 	factors. 	See
5 U.S.C. §§ 701–06. As relief, the plaintiffs ask this
3 Case 20-3825, ECF 23, at 14–15 (“U.S. Steel never actu-
ally supplied the required steel inputs, and [North Ameri-
can Interpipe] was forced to pay the 25 percent duties in
order to import the steel necessary to maintain its opera-
tions . . . .”); Case 20-3869, ECF 33, at 8 (Evraz, same ar-
gument as to Pipe Producers); Case 21-5, ECF 21, at 4 (Cal-
vert noting it imported steel and paid the Section 232 du-
ties); Case 21-15, ECF 18, at 5 (California Steel, same);
Case 21-27, ECF 19, at 9 (“. . . Valbruna was unable to, and
therefore did not, purchase any of these products from
Electralloy, but instead was forced to pay the 25 percent
Section 232 tariffs . . . .”); Case 21-93, ECF 27, at 6 (Voestal-
pine stating it paid the Section 232 tariffs).
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Court to order refunds or remand these cases back to
Commerce for further proceedings.
The Pending Intervention Motions
Several domestic parties that asserted objections to
Plaintiffs’ exclusion requests before Commerce now
move to intervene in these cases as party defendants
and have tendered proposed answers. United States
Steel Corporation seeks to intervene in four of these
cases; 4 four members of the American Line Pipe Pro-
ducers Association seek to intervene in their individ-
ual capacities 5 (collectively, “Pipe Producers”) in a sin-
gle case; 6 Electralloy/G.O. Carlson seeks to intervene
in two others; 7 and Crucible Industries LLC, Ellwood
City Forge Company, and Ellwood Specialty Steel all
seek to intervene in a single case. 8
4 U.S. Steel seeks to intervene in Cases 20-3825 (ECF 12),
20-3869 (ECF 10), 21-5 (ECF 9), and 21-15 (ECF 12).
5 American Cast Iron Pipe Company, Berg Steel Pipe Corp.,
Berg Spiral Pipe Corp., and Stupp Corporation. In their
supplemental briefing, the Pipe Producers clarified that
the association itself does not seek to intervene. Case
20-3869, ECF 30, at 1.
6 The Pipe Producers seek to intervene in Case 20-3869
(ECF 17).
7 Electralloy seeks to intervene in Cases 21-27 (ECF 9) and
21-93 (ECF 10).
8 Crucible, Ellwood City, and Ellwood Specialty all seek to
intervene in Case 21-93 (Crucible, ECF 13; Ellwood City
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The plaintiffs oppose intervention. The government
filed papers that fail to take a direct position but ex-
press doubts on the propriety of intervention. 9
Discussion
All proposed intervenors move to intervene as a
matter of right under Rule 24(a)(2) (based on a claimed
interest in the transactions at issue) and, alterna-
tively, 	for 	permissive 	intervention 	under 	Rule
24(b)(1)(B) (based on a claimed shared defense). Some
of the intervenors also move for permissive interven-
tion under Rule 24(b)(1)(A) (based on a claimed condi-
tional right to intervene by statute). 10 The Court con-
siders each ground in turn, but first addresses the
threshold question of the proposed intervenors’ stand-
ing.
and Ellwood Specialty, ECF 16). Because the two Ellwood
entities filed a single motion that refers to them jointly as
“Ellwood,” this opinion does the same.
9 Cases 20-3825 (ECF 33), 20-3869 (ECF 49), 21-5 (ECF
20), 21-15 (ECF 21), 21-27 (ECF 21), and 21-93 (ECF 28).
10 U.S. Steel invokes Rule 24(b)(1)(A) in Cases 20-3825
(ECF 22, at 14) and 20-3869 (ECF 32, at 14), but it does not
do so in Cases 21-5 and 21-15. The Pipe Producers invoke
Rule 24(b)(1)(A) in Case 20-3869 (ECF 17, at 5–6 (Pipe Pro-
ducers discussing “conditional right to intervene by federal
statute”)). The other proposed intervenors do not invoke
this provision.
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I. 	Intervenors’ Article III standing burden
In a district court and the CIT, Article III requires
as a threshold matter that a proposed intervenor—re-
gardless 	of 	the 	basis 	upon 	which 	intervention 	is
sought—demonstrate 	independent 	constitutional
standing insofar as the proposed intervenor seeks any
relief that is different from that sought by the existing
parties to the case. See PrimeSource, 494 F. Supp. 3d
at 1319–20 (Baker, J., concurring) (discussing Town of
Chester, N.Y. v. Laroe Estates, 137 S. Ct. 1645 (2017),
and Little Sisters of the Poor Saints Peter & Paul Home
v. Pennsylvania, 140 S. Ct. 2367 (2020)). In view of this
principle, a putative intervenor has the burden of
demonstrating either its independent constitutional
standing or its “piggyback standing,” i.e., standing
based on seeking the same relief sought by an existing
party to the case. See id. 11
11 In Cases 20-3825 and 20-3869, the proposed intervenors
filed motion papers either prior to or contemporaneously
with the issuance of the PrimeSource decision that denied
intervention in several cases challenging the President’s
Section 232 tariffs. The Court therefore directed the pro-
posed intervenors in those cases to file supplemental pa-
pers addressing standing and other issues explored in the
PrimeSource concurrence. Case 20-3825, ECF 18, at 2–3;
Case 20-3869, ECF 26, at 2–3. As the later-filed moving pa-
pers of proposed intervenors in the other four cases indi-
cated awareness of the PrimeSource decision generally, see
Case 21-5, ECF 9, at 5 (generally citing PrimeSource), and
of the issues explored in the concurrence specifically, see id.
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In two of these cases, U.S. Steel disclaims seeking
any relief separate from that sought by the govern-
ment 	and 	has 	therefore 	established 	its 	piggyback
standing. 12 On the other hand, in two of the other
cases in which it seeks to intervene, 13 U.S. Steel ig-
nores the issue. Electralloy, Crucible, and Ellwood
likewise ignore the issue in motions that are largely
verbatim copies of the latter two filings from U.S.
Steel. Therefore, the Court denies the latter two mo-
tions from U.S. Steel, as well as those from Electralloy,
Crucible, and Ellwood, because they fail to even ad-
dress, much less establish, either their independent
constitutional standing or their piggyback standing as
required by Article III.
In Case 20-3869, the Pipe Producers stated at the
time of their filing that they did “not know what relief,
if any, Defendant intends to seek with respect to each
at 4 n.1; Case 21-15, ECF 12, at 4 n.1; Case 21-27, ECF 9,
at 4 n.1; Case 21-93, ECF 10, 13, and 16, all at 6 n.2, the
Court did not order supplemental briefing in those cases.
12 See Case 20-3825, ECF 22, at 4 (“. . . U.S. Steel seeks
relief that is identical to that already sought by the federal
government—i.e., for this Court to uphold the govern-
ment’s denial of the product exclusions requested by Plain-
tiff.”); Case 20-3869, ECF 32, at 4 (same). In those cases,
U.S. Steel also asserts it has constitutional standing. Case
20-3825, ECF 22, at 14–15; Case 20-3869, ECF 32, at 14–
15 (same). The Court addresses this contention below in
connection 	with 	permissive 	intervention 	under 	Rule
24(b)(1)(A) and 28 U.S.C. § 2631(j)(1).
13 Cases 21-5 and 21-15.
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of Plaintiff’s claims.” Case 20-3869, ECF 30, at 2. That
said, however, the Pipe Producers made clear that
“[t]he only relief that Proposed Defendant-Intervenors
seek is for Plaintiff’s [i.e., Evraz’s] line pipe [exclusion]
claims to be denied.” Id. at 3. As the government’s
since-filed answer also seeks rejection of those claims,
see Case 20-3869, ECF 45, the Pipe Producers have
satisfied their Article III burden of establishing their
piggyback standing. 14
II. Intervention as of right (Rule 24(a)(2))
All the proposed intervenors invoke Rule 24(a)(2),
which provides in relevant part:
Intervention of Right. On timely motion, the
court must permit anyone to intervene who:
. . . .
(2) . . . 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
14 The Pipe Producers also assert that they have independ-
ent constitutional standing. See Case 20-3869, ECF 30,
at 14. The Court addresses this contention below in connec-
tion with permissive intervention under Rule 24(b)(1)(A)
and 28 U.S.C. § 2631(j)(1).
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existing parties adequately represent that inter-
est.
USCIT R. 24(a)(2).
This language is borrowed from Federal Rule of
Civil Procedure 24, which the Federal Circuit has in-
terpreted as imposing a four-part test: (1) the motion
must be timely; (2) the moving party must claim an
interest in the property or transaction at issue that is
“ ‘legally protectable’—merely economic interests will
not suffice,” Wolfsen Land & Cattle Co. v. Pac. Coast
Fed’n of Fishermen’s Ass’ns, 695 F.3d 1310, 1315 (Fed.
Cir. 2012) (quoting Am. Mar. Transp., Inc. v. United
States, 870 F.2d 1559, 1562 (Fed. Cir. 1989)); (3) “that
interest’s relationship to the litigation 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,’ ” id. (quoting Am. Mar., 870
F.2d at 1561) (emphasis in Am. Mar.); and (4) “the mo-
vant must demonstrate that said interest is not ade-
quately addressed by the government’s participation,”
id. (quoting Am. Mar., 870 F.2d at 1560). 15 As no party
15 As explained in the PrimeSource concurrence, see 494
F. Supp. 3d at 1325 n.24 (Baker, J., concurring), while
Wolfsen and American Maritime involved Court of Federal
Claims Rule 24, the Federal Circuit applied authorities
that interpreted Federal Rule of Civil Procedure 24. See
Wolfsen, 695 F.3d at 1315–16; Am. Mar., 870 F.2d at 1561.
The relevant Court of Federal Claims rule is—like this
Court’s Rule 24—drawn verbatim from Federal Rule of
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opposing intervention disputes—or could reasonably
dispute—that the intervention motions were timely, 16
the Court therefore addresses the remaining three el-
ements.
A. Whether the proposed intervenors have
legally protectable interests
The proposed intervenors all claim to have legally
protectable interests in Commerce’s denials of the
plaintiffs’ Section 232 exclusion requests. The reasons
offered fall into two categories.
First, several of the proposed intervenors claim
that they have various economic interests in prevent-
ing the plaintiffs from escaping Section 232 steel tar-
iffs. 17 In two cases, U.S. Steel implies, without directly
stating, that it has an economic interest by arguing
Civil Procedure 24, making the rationale of Wolfsen and
American Maritime directly controlling in the Court of In-
ternational Trade.
16 All of the intervention motions were filed shortly after
the commencement of these actions.
17 See Case 21-15, ECF 12, at 6 (U.S. Steel arguing that
Commerce’s decision on an exclusion request “has a direct
commercial and economic impact on U.S. Steel, which is
why domestic producers like U.S. Steel are provided an op-
portunity to object in the first instance.”); Case 21-5,
ECF 9, at 6 (U.S. Steel making same argument); Case
21-27, ECF 9, at 5–6 (Electralloy, same argument); Case
21-93, 	ECF 	10 	(Electralloy), 	13 	(Crucible), 	and 	16
(Ellwood), all at 9–10 (same argument).
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that it has a “direct interest” in Commerce’s decision
on the exclusion requests because “U.S. Steel can pro-
duce the exact products Plaintiff sought exclusions for”
and because “Plaintiff sought to undermine the pur-
pose of the Section 232 tariffs and deprive U.S. Steel
and other domestic producers of the benefits of the
Section 232 tariffs.” Case 20-3825, ECF 22, at 6; Case
20-3869, ECF 32, at 6 (same). Such economic interests,
however, do not establish a “legally protectable inter-
est” under Rule 24. See Wolfsen, 695 F.3d at 1315
(“mere[] economic interests will not suffice”).
The Pipe Producers, in contrast, analogize these
cases to antidumping or countervailing duty proceed-
ings because Commerce’s exclusion procedure is “an
adversarial administrative procedure through which
interested parties in the United States could request
and object to product-specific exclusions from Section
232 tariffs.” Case 20-3869, ECF 30, at 6. “Like anti-
dumping and countervailing duty proceedings, and
unlike the Proclamation at issue in PrimeSource, this
framework ‘provide[s] specific rights to domestic pro-
ducers to participate in administrative proceedings
culminating in final agency action’ either granting or
denying exclusions from Section 232 duties.” Id. at 7
(brackets 	in 	original) 	(quoting 	PrimeSource, 	494
F. Supp. 3d at 1325 (Baker, J., concurring)).
For purposes of Rule 24(a)(2)’s “protectable inter-
est” inquiry, however, Section 232 and its administra-
tive scheme, differ in at least two critical respects from
the Tariff Act of 1930, 19 U.S.C. § 1202 et seq., and its
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administrative scheme governing antidumping and
countervailing duties. 18 First, unlike the Tariff Act,
which confers an absolute right on domestic interested
parties to request initiation of investigations and to
participate 	in 	Commerce’s 	and 	the 	International
Trade Commission’s antidumping and countervailing
duty proceedings, 19 Section 232 itself confers no such
right to participate in agency proceedings. While Sec-
tion 232 expressly permits Commerce to hear from
18 The two statutory schemes also differ in a third respect,
but this difference is relevant to Rule 24(a)’s alternative
pathway for intervention as of right, i.e., when a third
party “is given an unconditional right to intervene by fed-
eral statute.” USCIT R. 24(a)(1). By statute, interested par-
ties that participate in administrative proceedings before
Commerce and the ITC in antidumping and countervailing
duty matters may intervene as of right in any ensuing liti-
gation in the CIT. See 28 U.S.C. § 2631(j)(1)(B). As a result,
such interested parties intervene in this Court using the
procedural mechanism of Rule 24(a)(1) rather than Rule
24(a)(2). Accordingly, the Court assumes—but does not de-
cide—that 	absent 	the 	existing 	unconditional 	statutory
right of intervention, interested parties that participated
in administrative proceedings in antidumping and counter-
vailing duty cases would have a protectable interest for
purposes of intervention under Rule 24(a)(2).
19 See, e.g., 19 U.S.C. §§ 1671a (initiation of countervailing
duty investigation), 1673a (initiation of antidumping duty
investigation), 1671b(b)(3) (referring to “interested party”
participation 	in 	countervailing 	duty 	investigation),
1673b(b)(2) (same as to antidumping duty investigations),
1677(9)(C) (defining an “interested party” to include “a
manufacturer, producer, or wholesaler in the United States
of a domestic like product”).
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domestic parties in connection with national security
investigations, 20 the statute does not require Com-
merce to do so, nor does it impose any requirement
that Commerce—much less this Court—permit outsid-
ers to voice objections to any exclusions that the De-
partment 	might 	grant 	under 	any 	administrative
scheme 	implementing 	national 	security 	tariffs. 	Cf.
Am. Mar., 870 F.2d at 1562–63 (holding that statutory
right of “all parties” to be heard in agency proceedings
did not create a protected legal interest of such parties
to litigate in what is now the Court of Federal Claims
absent statutory recognition of such a right). That
Commerce does so is, in effect, an act of administrative
grace that creates no protected legal interests.
Second, the Tariff Act only permits narrowly de-
fined parties—“interested parties”—to participate in
antidumping and countervailing duty administrative
proceedings. 	See above 	note 19. In contrast, Com-
merce’s administrative scheme implementing Section
232 permits any domestic person or entity to voice ob-
jections to exclusion requests. For purposes of Rule
24(a)(2), any scheme such as Commerce’s here that ef-
fectively permits anyone to participate in administra-
tive proceedings confers a legally protectable interest
20 See 19 U.S.C. § 1862(b)(2)(A)(iii) (“In the course of any
investigation conducted under this subsection, the Secre-
tary shall . . . if it is appropriate and after reasonable no-
tice, hold public hearings or otherwise afford interested
parties an opportunity to present information and advice
relevant to such investigation.”).
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on no one. Cf. Lujan v. Defs. of Wildlife, 504 U.S. 555,
577 (1992) (stating that Congress may not “convert the
undifferentiated public interest in executive officers’
compliance with the law into an individual right vin-
dicable in the courts . . . .”) (cleaned up).
In short, because Section 232 confers no statutory
right to object to any exclusions that Commerce might
grant, 	and 	because 	Commerce’s 	administrative
scheme indiscriminately permits anyone to voice such
objections, the Court concludes that the Pipe Produc-
ers—the only proposed intervenors that made this ar-
gument—have no legally protectable interests for pur-
poses of Rule 24(a)(2) notwithstanding their participa-
tion in Commerce’s administrative proceedings.
B. Whether the proposed intervenors will
gain or lose by the direct legal operation
and effect of the judgment
Even if the proposed intervenors have legally pro-
tected interests in defending Commerce’s denials of
the plaintiffs’ exclusion requests, the intervenors must
also establish that they “will either gain or lose by the
direct legal operation and effect of the judgment.’ ”
Wolfsen, 695 F.3d at 1315 (quoting Am. Mar., 870 F.2d
at 1561) (emphasis in Am. Mar.). They cannot satisfy
this requirement.
In two of these cases, U.S. Steel argues that it has
a “direct and immediate” interest because a ruling for
Plaintiffs “will harm U.S. Steel’s ability to protect its
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interest as a leading domestic market participant.”
Case 20-3825, ECF 22, at 9. 21 U.S. Steel argues that it
is the party “best placed to address” evidence about “its
own ability to produce the subject products in suffi-
cient quantities and qualities, and its delivery times.”
Id. U.S. Steel claims that if the Court orders Com-
merce to grant the requested exclusions, the result
would be to “block U.S. Steel’s reinvestment in domes-
tic steel production, depress market prices, and neces-
sarily foreclose sales opportunities, [which] would neg-
atively impact U.S. Steel’s production utilization.” Id.
In the other two cases in which it seeks to inter-
vene, U.S. Steel argues that “the potential adverse im-
pact to U.S. Steel is not mere abstract ‘competition,’
and would occur by ‘the direct legal operation and ef-
fect of the judgment’ upon the tariff treatment of the
products at issue.” Case 21-15, ECF 12, at 7 (emphasis
in original) (quoting Am. Mar., 870 F.2d at 1561). 22
U.S. Steel emphasizes its argument that it “was capa-
ble of producing and selling slab substantially similar
to that which [Plaintiffs] sought to import tariff-free
. . . .” Id. at 8. Electralloy, Crucible, and Ellwood copy
this 	argument 	essentially 	verbatim. 	Case 	21-27,
ECF 9, at 6; Case 21-93, ECF 10, at 10–11, ECF 13,
at 10, and ECF 16, at 10–11.
21 U.S. Steel’s argument in Case 20-3869 is identical.
ECF 32, at 9.
22 U.S. Steel’s argument in Case 21-5 is identical. ECF 9,
at 7.
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Ct. Nos. 20-03825, 20-03869, 21-00005,
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Finally, the Pipe Producers argue that their inter-
ests are “direct and immediate” because “the product
exclusion determinations at issue in this appeal relate
to specific sales and projects. The purpose of Proposed
Defendant-Intervenors’ objections was to produce and
sell line pipe for those specific projects. Their ability to
do so turned directly on Commerce’s decision to grant
or deny Plaintiff’s requests.” Case 20-3869, ECF 30,
at 8 (citation omitted). The Pipe Producers therefore
conclude that their interests “include specific transac-
tions that ‘[a]ny relief granted by this Court will . . .
operate directly and immediately’ to affect.” Id. at 8–9
(alterations 	in 	original) 	(quoting 	PrimeSource, 	494
F. Supp. 3d at 1326 (Baker, J., concurring)).
The problem with the proposed intervenors’ argu-
ments is that upholding Commerce’s exclusions will
not provide the intervenors with sales opportunities,
because that ship has sailed. Plaintiff North American
Interpipe explains the issue well in responding to U.S.
Steel’s allegations about foreclosed “sale opportuni-
ties”:
However, 	despite 	denial 	of 	the 	exclusion 	re-
quests, U.S. Steel did not subsequently supply
the products at issue to [North American Inter-
pipe]. Thus, the grant or denial of the exclusion
requests that are at issue in this appeal will
have no particularized impact on U.S. Steel. In
reality, the only “interest” identified by U.S.
Steel in this matter is the indirect economic ben-
efit 	U.S. 	Steel 	believes 	it 	would 	receive 	by
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ensuring that [North American Interpipe] is in-
jured by unfair tariff treatment.
Case 20-3825, ECF 23, at 7. The other plaintiffs make
the same point. 23
Because the steel in question has long since been
imported and used, whether the Court affirms or over-
turns Commerce’s exclusion denials can make no dif-
ference to the proposed intervenors. Moreover, the re-
sult here would be the same even if, hypothetically, the
imports in question were suspended and gathering
dust in port warehouses pending the outcome of this
litigation. In that counterfactual scenario, there would
still be no certainty that if Plaintiffs lost they would
ship back their imports (if such a thing were even
23 See Case 21-27, ECF 19, at 9 (“Valbruna was unable to,
and therefore did not, purchase any of these products from
[objector] Electralloy, but instead was forced to pay the 25
percent Section 232 tariffs in order to continue to supply
its operations in Fort Wayne.”); Case 21-5, ECF 21, at 4
(“[T]he litigation involves entries that are now almost two
years old and have long ago been used or shipped.”); Case
21-93, ECF 27, at 8 (similar); Case 20-3869, ECF 25, at 8
(“If this Court were to grant the relief sought by Evraz, and
were Commerce to retroactively grant Evraz’s requests for
duty exclusions, this would merely result in a refund of Sec-
tion 232 duties improperly paid on imports already made.
In other words, the relief Evraz seeks could not deprive
U.S. Steel of any theoretical sales opportunities and there-
fore could not positively impact U.S. Steel’s capacity utili-
zation rate.”); Case 21-15, ECF 18 at 5 (noting the slabs in
question have been imported and the duties paid).
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commercially feasible) and instead purchase from the
proposed intervenors.
Thus, even if the imports could be rescinded if the
government were to prevail and the world could be re-
stored to the status quo ante, the proposed intervenors
would still not “gain . . . by the direct legal operation
and effect of the judgment,” Wolfsen, 695 F.3d at 1315
(quoting Am. Mar., 870 F.2d at 1561) (emphasis in Am.
Mar.). Any such gain would instead be both indirect
and contingent, resulting not from the direct effect of
the judgment, but instead from Plaintiffs’ choice to
purchase from the proposed intervenors rather than
completing 	the 	imports. 	Cf. 	Am. 	Mar., 	870 	F.2d
at 1561 (observing that a putative intervenor’s “inter-
est is indirect, because no consequence to it flows di-
rectly from a Claims Court ruling, and contingent be-
cause of the uncertainty that other events will actually
follow, causing [the putative intervenor] to suffer any
harm”).
In any event, given that the imports in question
were completed long ago with the accompanying pay-
ment of duties, the only possible “gain” that the pro-
posed intervenors can possibly obtain here is seeing
economic harm inflicted on the plaintiffs as actual or
potential competitors. The proposed intervenors, how-
ever, do not expressly claim to be competitors with the
plaintiffs—rather, they claim that they can supply the
products imported by the plaintiffs. But even if the
proposed intervenors and the plaintiffs do compete,
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any competitive benefit—if it can be called that 24 —to
the former resulting from the latter losing here would
be both indirect and contingent. See id.
C. Adequacy of government representation
The final element of the test for intervention as of
right under Rule 24(a)(2) is whether the movant has
demonstrated that its interest will not be adequately
represented by the government. That requires “a com-
pelling showing that [the movant’s] interests may not
be adequately protected by the government insofar as
there are aspects of the case that the government
might not—or might not be able to—pursue to their
fullest” and overcoming “the presumption that the gov-
ernment as sovereign adequately represents the inter-
est of citizens concerning matters that invoke ‘sover-
eign interests.’ ” PrimeSource, 494 F. Supp. 3d at 1326
(Baker, 	J., 	concurring) 	(quoting 	Wolfsen, 	695 	F.3d
at 1316).
One way to overcome the presumption is to seek dif-
ferent relief than the government, as then the pro-
posed intervenor’s “specific litigation goals” would not
24 The Court need not resolve the question, but it doubts
that inflicting retrospective harm that amounts to retalia-
tion—as opposed to prospectively raising the prices of a
competitor’s products—is a cognizable “competitive bene-
fit” for purposes of Rule 24(a)(2).
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“identically 	match 	those 	of 	an 	existing 	party.” 25
Wolfsen, 695 F.3d at 1318. For example, opposing a
settlement agreed to by the government would surely
constitute a divergence in litigation goals. To that end,
the proposed intervenors express alarm that the gov-
ernment might settle these cases, and intimate that
they would oppose settlement. See, e.g., Case 20-3825,
ECF 22, at 11–12. “But these concerns [regarding po-
tential settlement] are at this point speculative and
cannot justify intervention unless and until there is
such a settlement.” Wolfsen, 695 F.3d at 1318.
As the proposed intervenors here seek (so far) the
same relief as the government, their “entry into [these]
case[s] is presumptively barred” unless they “demon-
strate that [their] participation could add some mate-
rial aspect beyond what is already present.” Id.
The proposed intervenors make no such showing
here. Instead they assert that the government’s sover-
eign interest in maintaining the Section 232 exclusion
process does not encompass their proprietary interests
in these specific transactions. See, e.g., Case 20-3869,
ECF 30, at 10 (Pipe Producers arguing that they “are
seeking to protect a more ‘parochial’ financial interest
not shared by other citizens” and that “there is no
25 Of course, overcoming the presumption by seeking differ-
ent relief than the government would be at the price of in-
curring the burden of demonstrating independent constitu-
tional standing. See PrimeSource, 494 F. Supp. 3d at 1319–
20 (Baker, J., concurring).
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reason to believe that [the government] has any spe-
cific interest in defending the line pipe product exclu-
sion determinations in particular” (emphasis in origi-
nal) 	(quoting, 	for 	the 	“parochial 	interest,” 	United
States v. Union Elec. Co., 64 F.3d 1152, 1170 (8th Cir.
1995)); Case 21-93, ECF 16, at 15 (Ellwood arguing
that “the government may be content to litigate this
matter with an objective of protecting the broader Sec-
tion 232 process while granting the particular exclu-
sions at issue to make this case go away”). Wolfsen,
however, requires the Court to presume that the gov-
ernment’s sovereign interests and the proposed inter-
venors’ private interests are coincident. See 695 F.3d
at 1317. 26
Finally, several proposed intervenors claim that
they can make “factual contributions” that will cure
“imperfect 	administrative 	records.” 27 	The 	Court
26 Insofar as the proposed intervenors rely on Vivitar Corp.
v. United States, 585 F. Supp. 1415 (CIT 1984), for the
proposition that private commercial interests are not ade-
quately 	represented 	by 	the 	government, Vivitar 	is 	no
longer persuasive in light of Wolfsen. See PrimeSource,
494 F. Supp. 3d at 1327 (Baker, J., concurring).
27 See, e.g., Case 20-3825, ECF 22, at 12–13 (“Finally, as
Section 1581(i) cases lack an administrative record until
the record is created through the government’s answer and
potential discovery, . . . U.S. Steel’s factual contributions
concerning its production capacity will bolster its existing,
truthful submissions to the administrative record.”); Case
21-5, ECF 9, at 10 (“Finally, as Section 1581(i) cases lack
an 	administrative 	record 	until 	the 	record 	is 	created
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disagrees because, as Plaintiffs and the government
point out, judicial review is confined to the existing ad-
ministrative records in these matters. See JSW Steel
(USA) Inc. v. United States, 466 F. Supp. 3d 1320, 1328
(CIT 2020) (stating that in APA cases, “judicial review
is generally limited to the full administrative record
before the agency at the time it rendered its decision”
and explaining that the rationale behind this rule is
“to guard against courts using new evidence to convert
the arbitrary and capricious standard into effectively
de novo review” (cleaned up) (citing, for the rationale,
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d
1374, 1380 (Fed. Cir. 2009))); Giorgio Foods, Inc. v.
United States, 755 F. Supp. 2d 1342, 1346 (CIT 2011)
(“In an administrative review case, it is rare that a fed-
eral court will consider information outside of the rec-
ord submitted.”). Because the administrative records
are closed, the proposed intervenors’ “factual contribu-
tions” would not “add some material aspect to the case
beyond what is already present.” Wolfsen, 695 F.3d at
1318.
* * *
through the government’s answer and potential discovery,
. . . U.S. Steel’s interests may be impaired or impeded by
imperfect administrative records . . . .”); Case 21-27, ECF 9,
at 8 (Electralloy, same argument as U.S. Steel in Case
21-5); Case 21-93, ECF 10, 13, and 16, all at 13 (Electralloy,
Crucible, and Ellwood, same argument as U.S. Steel in
Case 21-5).
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In sum, while the proposed intervenors’ motions
are timely, they fail to satisfy the other three elements
of the Federal Circuit’s test for intervention as of right
under Rule 24(a)(2). The proposed intervenors lack
any legally protectable interest; any interest that they
do have is insufficiently direct and immediate; and
they have not demonstrated that the government will
not adequately protect whatever interest they have.
III. 	Permissive 	intervention 	under 	Rule
24(b)(1)
As an alternative to intervention as of right, the
proposed intervenors seek leave to intervene under
Rule 24(b)(1), which provides as follows:
(1) In General. On timely motion, the court may
permit anyone to intervene who:
(A) is given a conditional right to intervene by
a federal statute; or
(B) has a claim or defense that shares with
the main action a common question of law or
fact.
USCIT R. 24(b)(1).
Thus, Rule 24(b)(1) provides two pathways for per-
missive intervention. If a proposed intervenor is oth-
erwise eligible to intervene under either pathway, in
the exercise of its discretion the Court then “must con-
sider whether the intervention will unduly delay or
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prejudice 	the 	adjudication 	of 	the 	original 	parties’
rights.” USCIT R. 24(b)(3).
A. Conditional right to intervene by stat-
ute (Rule 24(b)(1)(A))
Two of the proposed intervenors invoke the first
pathway in Rule 24(b)(1)(A), that is, pursuant to stat-
ute. U.S. Steel does so in Cases 20-3825 and 20-3869,
and the Pipe Producers do so in Case 20-3869. 28 In con-
tending that a federal statute gives them a “condi-
tional right to intervene” for purposes of the rule, U.S.
Steel 	and 	the 	Pipe 	Producers 	cite 	28 	U.S.C.
§ 2631(j)(1), which provides that “any person who
would be adversely affected or aggrieved by a decision
in a civil action” pending in the CIT “may, by leave of
court, 	intervene 	in 	such 	action.” 	28 	U.S.C.
§ 2631(j)(1). 29
28 Case 20-3825, ECF 22, at 14 (U.S. Steel referring to Rule
24(b)(1)(A)); Case 20-3869, ECF 32, at 14 (U.S. Steel,
same); Case 20-3869, ECF 17, at 5–6 (Pipe Producers dis-
cussing “conditional right to intervene by federal statute”).
29 In Cases 21-5 (U.S. Steel), 21-15 (U.S. Steel), 21-27 (Elec-
tralloy), and 21-93 (Electralloy, Crucible, and Ellwood), the
proposed intervenors do not invoke Rule 24(b)(1)(A), and
only 	mention 	the 	intervention 	statute 	(28 	U.S.C.
§ 2631(j)(1)) in passing in connection with the “shared de-
fense” pathway under Rule 24(b)(1)(B). Accordingly, by not
expressly invoking Rule 24(b)(1)(A) and failing to develop
any reasoned argument as to why they are eligible to inter-
vene 	under 	28 	U.S.C. 	§ 	2631(j)(1), 	these 	proposed
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1. Constitutional standing
To be “adversely affected or aggrieved by” a deci-
sion of the CIT for purposes of permissive intervention
under 28 U.S.C. § 2631(j)(1), a proposed intervenor
must demonstrate independent constitutional stand-
ing. See PrimeSource, 494 F. Supp. 3d at 1328–29
(Baker, J., concurring) (citing Rohm & Haas Co. v.
U.S. Int’l Trade Comm’n, 554 F.2d 462, 463 (CCPA
1977)). That is, a proposed intervenor seeking permis-
sive intervention pursuant to 28 U.S.C. § 2631(j)(1)
must demonstrate that (1) it is threatened with injury
in fact (2) from a decision of the court (3) that is re-
dressable by a ruling in favor of the party on whose
side the proposed intervenor seeks to intervene. Cf.
Mojave Desert Holdings, LLC v. Crocs, Inc., 987 F.3d
1070, 1078 (Fed. Cir. 2021) (“[T]he irreducible consti-
tutional 	minimum 	of 	standing 	contains 	three 	ele-
ments: injury in fact, causation, and redressability.”)
(cleaned up).
Both U.S. Steel (in Cases 20-3825 and 20-3869) and
the Pipe Producers assert that they will suffer injury
if the Court orders the government to refund the Sec-
tion 232 duties to the plaintiffs. U.S. Steel’s supple-
mental brief in both cases asserts the following facts:
U.S. Steel produces and sells products substan-
tially 	the 	same 	or 	identical 	to 	those 	that
intervenors have waived any argument that they are eligi-
ble for permissive intervention by statute.
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Plaintiffs sought to exclude. Thus, Plaintiff’s re-
quests to exclude these products from remedial
Section 232 tariffs are adverse to U.S. Steel’s
economic interests. U.S. Steel has a private in-
terest in rejection thereof.
As detailed [above], granting Plaintiff’s requests
would depress market prices for slab and down-
stream products, and foreclose sales to purchas-
ers of imports or derivatives, thus harming U.S.
Steel.
Case 	20-3825, 	ECF 	22, 	at 	14–15; 	Case 	20-3869,
ECF 32, at 15 (same). 30
The Pipe Producers, for their part, assert in their
supplemental 	brief 	that 	they 	would 	suffer 	“lower
prices and lost sales as a result of greater import com-
petition” if “Commerce’s line pipe product exclusion
determinations were nullified.” Case 20-3869, ECF 30,
at 14.
Neither U.S. Steel nor the Pipe Producers, how-
ever, have submitted any evidentiary materials estab-
lishing these facts asserted by counsel. 31 Nor have
30 U.S. Steel’s briefs contain no further “detail[]” regarding
these asserted injuries, notwithstanding the prefatory “[a]s
detailed [above]” characterization.
31 “Briefs,” of course, “are arguments, not evidence.” Mor-
genstern v. Burton, 86 F.2d 341, 342 (CCPA 1936); see also
Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed.
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they even alleged these asserted facts in their prof-
fered answers. 32
A party with the burden of establishing independ-
ent constitutional standing must do so “in the same
way as any other matter on which the [party] bears the
burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the liti-
gation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). Thus, “[a]t the pleading stage, general factual
allegations of injury resulting from the defendant’s
conduct may suffice . . . .” Id. But at the summary judg-
ment stage, “the plaintiff can no longer rest on such
mere allegations, but must set forth by affidavit or
other evidence specific facts . . . .” Id. (cleaned up). And
in the final stage, “those facts (if controverted) must be
supported 	adequately 	by 	the 	evidence 	adduced 	at
trial.” Id. (cleaned up).
In this context of permissive intervention pursuant
to Rule 24(b)(1)(A) and 28 U.S.C. § 2631(j)(1), it is un-
clear what “manner and degree of evidence” is re-
quired from a proposed intervenor with the burden of
establishing its independent constitutional standing.
Nevertheless, at the very minimum, it must be that a
proposed 	intervenor 	invoking 	Rule 	24(b)(1)(A) 	and
28 U.S.C. § 2631(j)(1) to join a lawsuit—like a plaintiff
Cir. 1997) (“[A]rguments of counsel cannot take the place
of evidence lacking in the record.”).
32 See Case 20-3825, ECF 16 (U.S. Steel); Case 20-3869,
ECF 11 (U.S. Steel) and ECF 24 (Pipe Producers).
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commencing a lawsuit—has the burden of proffering a
pleading with factual allegations establishing stand-
ing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (“Where, as here, a case is at the pleading stage,
the plaintiff must clearly allege facts demonstrating
each element [of standing].” (cleaned up)). Here, nei-
ther the Pipe Producers nor U.S. Steel have alleged
facts establishing standing in their proposed answers,
which (in the absence of any evidentiary materials es-
tablishing their standing) defeats their invocation of
Rule 24(b)(1)(A) and 28 U.S.C. § 2631(j)(1).
But even if the factual assertions by counsel in U.S.
Steel’s 	and 	the 	Pipe 	Producers’ 	motions 	in 	Cases
20-3825 and 20-3869 could suffice in the absence of ev-
identiary submissions or factual allegations of stand-
ing in their proposed answers, the Court concludes
that these entities lack constitutional standing.
Insofar as U.S. Steel and the Pipe Producers assert
(through counsel) that they are injured by not making
sales to the plaintiffs, that harm is no longer redressa-
ble. As discussed above, both North American Inter-
pipe and Evraz completed the imports in question and
paid the relevant duties. Case 20-3825, ECF 23, at 14–
15 (“U.S. Steel never actually supplied the required
steel 	inputs, 	and 	[North 	American 	Interpipe] 	was
forced to pay the 25 percent duties in order to import
the steel necessary to maintain its operations . . . .”);
Case 20-3869, ECF 33, at 8 (Evraz, same argument as
to Pipe Producers). That bell cannot be unrung, and
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there are no sales opportunities to gain if the Court
sustains Commerce’s exclusions.
Even if that bell could be unrung, there is no cer-
tainty 	that 	North 	American 	Interpipe 	and 	Evraz
would purchase the products in question from U.S.
Steel and the Pipe Producers (rather than proceed
with the imports anyway). That uncertainty means
that the causation element of standing is also lacking
here. Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398,
414 (2013) (“We decline to abandon our usual reluc-
tance to endorse standing theories that rest on specu-
lation about the decisions of independent actors.”); Si-
mon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42–43
(1976) (holding that plaintiffs lacked standing when it
was “purely speculative whether the denials of service
specified in the complaint fairly [could] be traced” to
the challenged regulation or “instead result[ed] from
decisions made by” the third parties and that it was
“equally speculative” whether the plaintiffs’ desired
injunction would result in them receiving service).
Nor do U.S. Steel’s and the Pipe Producers’ factual
assertions through counsel (if taken as true) establish
that they will suffer cognizable competitive injury if
the Court orders the government to refund Plaintiffs
North American Interpipe and Evraz their duties. To
begin with, U.S. Steel and the Pipe Producers do not
assert that they compete with North American Inter-
pipe and Evraz as to domestic sales of the imports in
question (or otherwise). That alone is reason to find
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that their counsel have not sufficiently asserted facts
that, if taken as true, establish standing.
In any event, on this record, U.S. Steel and the Pipe
Producers do not compete with North American Inter-
pipe and Evraz as to the specific products that are the
subject of the exclusion requests at issue. The facts are
somewhat different in each case, so the Court ad-
dresses them separately.
Although 	North 	American 	Interpipe—which 	al-
leges that it is an importer and distributor—appar-
ently resells on the domestic market the steel pipe it
imports, the import transactions in question have been
completed. Insofar as North American Interpipe and
U.S. Steel compete in the domestic market as to such
products (notwithstanding the lack of any factual as-
sertion to that effect by U.S. Steel), such competition
presumably has already occurred. Any decision by the
Court 	requiring 	the 	government 	to 	refund 	North
American Interpipe’s duties would not have “a natural
price-lowering . . . effect on [U.S. Steel’s past] sales
(compared to what prices . . . would be in the absence
of [such ruling]), . . . by directly lowering . . . prices for
[North American Interpipe’s] competing goods.” AVX
Corp. v. Presidio Components, Inc., 923 F.3d 1357,
1364 (Fed. Cir. 2019). The Court’s decision therefore
would not cause any injury to U.S. Steel even if it and
North American Interpipe are direct competitors in
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the domestic market for the steel pipe products that
the latter imports. 33
And insofar as U.S. Steel were to claim that it
would suffer “competitive injury” if North American
Interpipe obtains its duty refunds because the two
companies 	compete 	generally 	as 	to 	products 	other
than the transaction-specific steel pipe products at is-
sue in the latter’s exclusion request, such competitive
injury is not cognizable because it is insufficiently
“particularized and [ ] concrete.” Already, LLC v. Nike,
Inc., 568 U.S. 85, 99 (2013). In Already, a footwear
manufacturer contended that it had standing to chal-
lenge the validity of a competitor’s trademark—even
though the competitor, Nike, had covenanted not to
sue for infringement of the mark—because both com-
panies “compete[d] in the athletic footwear market.”
Id. The Supreme Court easily rejected this “boundless
theory of standing” that “a market participant is in-
jured for Article III purposes whenever a competitor
benefits from something allegedly unlawful.” Id. Al-
ready forecloses standing on the part of U.S. Steel to
33 In PrimeSource, by contrast, the plaintiffs sought pro-
spective injunctive relief invalidating Section 232 national
security 	tariffs 	on 	steel 	derivative 	imports. 	See 	494
F. Supp. 3d at 1311–12 (discussing entry of consented pre-
liminary injunctions against collection of duties). Had the
Court granted such relief, it would have had a natural
price-lowering effect on prices prospectively charged by the
plaintiffs and thus inflicted competitive injury on the pro-
posed intervenors that sold competing steel derivative
products.
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defend Commerce’s exclusion denials here on the the-
ory that U.S. Steel and North American Interpipe com-
pete outside of the context of the specific import trans-
actions at issue in this case.
Already similarly forecloses standing on the part of
proposed intervenors U.S. Steel and the Pipe Produc-
ers in Case 20-3869 brought by Evraz. Unlike North
American Interpipe in Case 20-3825, Evraz is not a
distributor—it is a manufacturer, and it used the im-
ported steel in question for its manufacturing. Case
20-3869, ECF 25, at 2 (referring to Evraz as “a U.S.
producer of steel pipe products”). Thus, any competi-
tion between U.S. Steel and the Pipe Producers on the
one hand and Evraz on the other does not involve the
specific products for which the latter sought an exclu-
sion—rather, it involves manufactured products that
are necessarily different from the steel inputs that are
the subject of Evraz’s exclusion requests. Just because
Evraz would benefit from duty refunds does not give
standing to U.S. Steel and the Pipe Producers to chal-
lenge those refunds, any more than U.S. Steel and
Pipe Producers would be injured for standing purposes
by an IRS tax refund to Evraz that would improve its
financial bottom line.
2. Prudential Standing
A proposed intervenor invoking permissive inter-
vention under 28 U.S.C. § 2631(j)(1) must also demon-
strate 	prudential 	standing. 	See 	PrimeSource, 	494
F. Supp. 3d at 1330 n.34 (Baker, J., concurring) (citing
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Bennett v. Spear, 520 U.S. 154, 163 (1997)). But even
if the statute does not require consideration of a pro-
posed intervenor’s prudential standing, it invests the
court with discretion to do so. Id.
One aspect of prudential standing is third-party
standing. See id. at 1330–31 (Baker, J., concurring).
This principle “limits access to the federal courts to
those litigants best suited to assert a particular claim.”
Id. at 1330 (cleaned up and quoting Starr Int’l Co., Inc.
v. United States, 856 F.3d 953, 965 (Fed. Cir. 2017)).
Assuming a litigant (or, as here, putative litigant) has
constitutional standing, i.e., injury in fact, a court may
nonetheless deny standing if the litigant seeks to vin-
dicate not its own legal right or interest, but instead
the “legal rights or interests of [a] third part[y].” Id.
Here, U.S. Steel (in Cases 20-3825 and 20-3869)
and the Pipe Producers (in Case 20-3869) seek to de-
fend Commerce’s 	denial 	of Plaintiffs’ 	exclusion 	re-
quests, which is a sovereign interest of the govern-
ment. To have third-party standing to defend the gov-
ernment’s sovereign interests, U.S. Steel and the Pipe
Producers would have to “demonstrate a close relation-
ship with the person who possesses the right, i.e., the
government, and a hindrance to the government’s abil-
ity to protect its own interests.” Id. at 1331 (cleaned
up). Neither U.S. Steel nor the Pipe Producers make
any attempt to satisfy these requirements.
Instead, both U.S. Steel and the Pipe Producers ar-
gue 	in 	effect 	that 	they 	have 	first-party 	standing
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because Commerce’s interim rule allowed them to ob-
ject to Plaintiffs’ exclusion requests. Case 20-3825,
ECF 22, at 16–18 (U.S. Steel); Case 20-3869, ECF 32,
at 17–18 (U.S. Steel), and ECF 30, at 14–15 (Pipe Pro-
ducers). According to U.S. Steel and the Pipe Produc-
ers, Commerce’s 	interim 	final 	rule 	conferred 	upon
them a legally protected interest for standing pur-
poses, and thus they need not satisfy the requirements
of third-party standing.
Although Congress “has the power to create new in-
terests, the invasion of which may confer standing,”
Diamond v. Charles, 476 U.S. 54, 65 n.17 (1986) (citing
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41
n.22 (1976)), Section 232 confers no rights upon third
parties to participate in administrative proceedings
involving exclusion requests, much less for such third
parties to initiate or participate in subsequent court
challenges to the results of those proceedings. That
alone defeats any argument that U.S. Steel and the
Pipe Producers have any cognizable legal interest here
for first-party standing purposes. And while Com-
merce’s interim final rule permits anyone to voice ob-
jections to exclusion requests, that is as far as it goes.
It 	hardly 	creates—even 	assuming 	the 	Department
could 	do 	so 	unilaterally, 	absent 	statutory 	authori-
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zation—any cognizable interest in either defending or
challenging the results of those proceedings. 34
* * *
With the exception of U.S. Steel (in Cases 20-3825
and -3869) and the Pipe Producers, the proposed inter-
venors have waived any claim to permissive interven-
tion 	pursuant 	to 	Rule 	24(b)(1)(A) 	and 	28 	U.S.C.
§ 2631(j)(1). Although U.S. Steel (in those two cases)
and the Pipe Producers expressly seek intervention on
this basis, they have not demonstrated constitutional
standing and therefore are not “adversely affected or
aggrieved” as required by 28 U.S.C. § 2631(j)(1). Fi-
nally, even if U.S. Steel and the Pipe Producers have
constitutional standing, they lack third-party stand-
ing and thus prudential standing, which 28 U.S.C.
§ 2631(j)(1) also requires or at least allows the Court
in its discretion to consider.
B. Permissive 	intervention 	based 	on 	a
shared defense (Rule 24(b)(1)(B))
The second pathway of Rule 24(b)(1) allows permis-
sive intervention if the putative intervenor “has a
34 U.S. Steel’s and the Pipe Producers’ argument that they
have a legally protected interest in defending Commerce’s
exclusion denials is a two-way street; if their interest is suf-
ficiently cognizable to allow them to defend such denials,
then they would also necessarily have a cognizable interest
in challenging any exclusions granted by the Department
over their objections.
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claim or defense that shares with the main action a
common question of law or fact.” USCIT R. 24(b)(1)(B).
As used in Federal Rule of Civil Procedure 24(b)(1)(B),
and therefore by extension in this Court’s counterpart,
the “words ‘claim[] or defense[]’ . . . ‘manifestly refer to
the kinds of claims or defenses that can be raised in
courts of law as part of an actual or impending law
suit.’ ” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
623 n.18 (1997) (quoting Diamond v. Charles, 476 U.S.
54, 76–77 (1986) (O’Connor, J., concurring in part and
concurring in judgment)).
In 	other 	words, 	“claim 	or 	defense” 	in 	Rule
24(b)(1)(B) must be read in tandem with “claim” in
Rule 	8(a)(2) 	and 	“defense” 	in 	Rule 	8(c)(1)(A). 35
PrimeSource, 494 F. Supp. 3d at 1333 (Baker, J., con-
curring); cf. Amchem, 521 U.S. at 623 n.18 (reading
“claims or defenses” in Federal Rule of Civil Procedure
23(a)(3) (governing commonality for class certification)
in tandem with “claim or defense” in Federal Rule of
Civil Procedure 24(b) (governing permissive interven-
tion)); United Keetoowah Band of Cherokee Indians of
Okla. v. United States, 480 F.3d 1318, 1324 (Fed. Cir.
2007) (reading the “interest” requirement in Court of
Federal Claims Rule 19(a)(2) (governing joinder of
35 “A pleading that states a claim for relief must contain:
. . . (2) a short and plain statement of the claim showing
that the pleader is entitled to relief . . . .” USCIT R. 8(a)(2).
“In responding to a pleading, a party must: (A) state in
short and plain terms its defenses to each claim asserted
against it . . . .” USCIT R. 8(c)(1)(A) (emphasis added).
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persons required to be joined) as having the same
meaning as the “interest” requirement in Court of Fed-
eral Claims Rule 24(a)(2) (governing intervention of
right based on a claimed “interest relating to the prop-
erty or transaction that is the subject of the action”)).
Plaintiffs seek APA relief against the government
for its collection of Section 232 duties. Here, the pro-
posed intervenors share no “defense” with the govern-
ment for purposes of Rule 24(b)(1)(B), because the an-
tecedent requirement for a Rule 8(c)(1)(A) “defense” is
a Rule 8(a)(2) “claim asserted against [the litigant]”
proffering the defense. USCIT R. 8(c)(1)(A) (emphasis
added). 36 The only Rule 8(a)(2) “claim” that Plaintiffs
have here—or can conceivably have—is against the
government.
Plaintiffs do not seek—and, more importantly, can-
not seek—any relief against the proposed intervenors.
As Plaintiff California Steel aptly explains, the ques-
tion for this Court is whether Commerce—not the
36 Rule 24(b)(1)(B) properly understood “is a mechanism for
consolidating in a single action claims or defenses that
might otherwise be litigated separately.” PrimeSource, 494
F. Supp. 3d at 1334 n.37 (Baker, J., concurring) (quoting
Nelson, 106 Va. L. Rev. at 386). As such, it “offers a stream-
lined mechanism for an outside party to join pending liti-
gation rather than filing a separate lawsuit and seeking
consolidation.” Id. (quoting Nelson, 106 Va. L. Rev. at 386
n.572). It is assuredly not an open invitation for an outsider
to inject itself as a defendant into litigation simply because
it wants the plaintiff to lose.
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proposed intervenors—violated the APA when it de-
nied the exclusion requests, and “[o]n that score, [an
intervenor] is simply a bystander.” Case 21-15, ECF
18, at 2.
Put differently, how could Plaintiffs possibly sue
domestic steel manufacturers for refunds of tariffs
paid to the government? Obviously, they cannot. They
therefore “have no cognizable ‘claim’ against [Proposed
Defendant-Intervenors] 	within 	the 	meaning 	of 	the
Federal 	Rules 	of 	Civil 	Procedure 	and 	our 	rules.”
PrimeSource, 494 F. Supp. 3d at 1333–34 (Baker, J.,
concurring). It would be nonsensical (if not sanctiona-
ble) for Plaintiffs to attempt to sue the proposed inter-
venors in addition to the government, which means it
is equally nonsensical for the proposed intervenors to
claim a “shared defense” with the government. There-
fore, for precisely the same reason that Plaintiffs could
“seek no relief against the [proposed intervenors], in
this suit or any other, the [proposed intervenors have]
no ‘defense’ within the meaning of our Rules 8(c)(1)(A)
and 24(b)(1)(B).” Id. (footnote omitted). The proposed
intervenors are thus ineligible for permissive inter-
vention under Rule 24(b)(1)(B). See Diamond, 476 U.S.
at 76–77 (1986) (O’Connor, J., concurring in part and
concurring in judgment) (observing that a physician
was ineligible to permissively intervene to defend a
state abortion law because plaintiffs lacked any cog-
nizable claim against him); DeOtte v. Azar, 332 F.R.D.
173, 186 (N.D. Tex. 2019) (denying Nevada leave to
permissively intervene in litigation challenging the
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Affordable Care Act because plaintiffs lacked any cog-
nizable claim against that state).
C. Delay or prejudice
If a putative intervenor seeking permissive inter-
vention is otherwise eligible for permissive interven-
tion under either of Rule 24(b)’s pathways, the Court
then “must consider whether the intervention will un-
duly delay or prejudice the adjudication of the original
parties’ rights.” USCIT R. 24(b)(3). Because the pro-
posed intervenors are ineligible for (or waived any
claim to) permissive intervention pursuant to statute,
see USCIT R. 24(b)(1)(A), and because none of them
are eligible for permissive intervention based on a
shared defense, see USCIT R. 24(b)(1)(B), the Court
need not, and therefore declines to, consider the appli-
cable discretionary factors of delay and prejudice.
Conclusion
For all the foregoing reasons, the Court will issue a
separate order denying the various motions to inter-
vene. See USCIT R. 58(a).
Dated: 	May 25, 2021 	/s/ M. Miller Baker
New York, NY 	M. Miller Baker, Judge
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