Ad Hoc Utilities Group v. United States

Slip Op. 09-98

UNITED STATES COURT OF INTERNATIONAL TRADE

AD HOC UTILITIES GROUP,

Plaintiff,

v.

Before: Pogue, Judge

UNITED STATES,

Court No. 06-00229

Defendant,

- and -

USEC INCORPORATED, et al.

Defendant-Intervenors.

OPINION

[Plaintiff’s motion for rehearing denied.]

September 15, 2009

Pillsbury Winthrop Shaw Pittman LLP (Nancy A. Fischer and

Joshua D. Fitzhugh) for Plaintiff Ad Hoc Utilities Group.

Tony West, Assistant Attorney General; Jeanne E. Davidson,

Director, Patricia M. McCarthy, Assistant Director, Commercial

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

(Stephen C. Tosini) for Defendant United States.

Steptoe & Johnson LLP (Eric C. Emerson, Alexandra E.P. Baj,

Sheldon E. Hochberg, Richard O. Cunningham and Thomas J. Trendl)

for Defendant-Intervenors USEC Inc. and United States Enrichment

Corp.

Akin Gump Strauss Hauer & Feld LLP (Valerie A. Slater,

Margaret C. Marsh, Bernd G. Janzen and Lisa W. Ross) for Defendant-

Intervenors Power Resources, Inc. and Crowe Butte Resources, Inc.

Pogue, Judge: Plaintiff in this case, Ad Hoc Utilities Group

Court No. 06-229 Page 2

(“AHUG”), pursuant to USCIT Rule 59,1 requests rehearing of the

court’s dismissal of Plaintiff’s action for lack of standing. See

Ad Hoc Utils. Group v. United States, Slip Op. 09-56, 2009 Ct.

Intl. Trade LEXIS 60 (CIT June 15, 2009) (“AHUG”).2 In AHUG, the

issue presented was whether “a group of American utility companies

that obtain and use enriched uranium from Russia” had standing “to

challenge the Department of Commerce’s (‘Commerce’) decision not to

terminate its antidumping duty investigation of that uranium.” Id.

at *1-2. The court dismissed AHUG’s action “[b]ecause the utility

companies individually d[id] not each qualify either as producers

or importers of the subject uranium,” id. at *2 (emphasis added),

and, in the alternative, because the companies would, even if

treated as a group, fail to “qualify as a trade or business

association a majority of the members of which are producers or

1

“The court may, on motion, grant a new trial or rehearing

on all or some of the issues -- and to any party -- as follows: .

. . (B) after a nonjury trial, for any reason for which a

rehearing has heretofore been granted in a suit in equity in

federal court.” USCIT R. 59(a)(1). Although the Rule references

“nonjury trial[s],” subsection (B) has been expansively read by

this Court to encompass “rehearing[s] of any matter[s] decided by

the court without a jury,” NSK Corp. v. United States, __ CIT __,

__, 593 F. Supp. 2d 1355, 1362 (2008) (citation and internal

quotation marks omitted), including this court’s grant of

Defendants’ motion to dismiss for lack of standing. See id.; see

also Totes-Isotoner Corp. v. United States, __ CIT __, __, 580 F.

Supp. 2d 1371, 1373-74 (2008), appeal docketed on other grounds,

No. 2009-1113 (Fed. Cir. Dec. 16, 2008); Intercargo Ins. Co. v.

United States, 20 CIT 951, 951-52, 936 F. Supp. 1049, 1049-50

(1996), aff’d, 129 F.3d 135 (Fed. Cir. 1997) (per curiam) (mem.).

2

Familiarity with the decision is presumed. The history

and context of this case is fully explained therein.

Court No. 06-229 Page 3

importers.” Id.

As explained below, as AHUG was correctly decided, and no

individual utility company with standing is a plaintiff herein, the

court denies Plaintiff’s motion.

BACKGROUND

A. The Administrative Proceeding

This dispute arose from AHUG’s 2006 challenge to Commerce’s

second “sunset” review of the suspension of the antidumping duty

investigation of uranium from Russia, pursuant to Uranium from

Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine, and

Uzbekistan, 57 Fed. Reg. 49,220 (Dep’t Commerce Oct. 30, 1992)

(notice of suspension of investigations and amendment of

preliminary determinations). Commerce determined in its sunset

review that, in the absence of suspension, Russia would likely

continue dumping its enriched uranium in the U.S. market. See

Uranium From the Russian Federation, 71 Fed. Reg. 32,517 (Dep’t

Commerce June 6, 2006) (final results of five-year sunset review of

suspended antidumping duty investigation) and the accompanying

Issues & Decision Memorandum, A-821-802, Sunset Review (May 30,

2006), Admin R. Pub. Doc. 48, available at

http://ia.ita.doc.gov/frn/summary/RUSSIA/E6-8758-1.pdf (last

visited Sept. 9, 2009). AHUG sought court review of Commerce’s

determination.

Defendants United States and USEC moved the court to dismiss

Court No. 06-229 Page 4

the case for lack of standing, putting in play the issue of whether

AHUG could qualify as an “interested party” with a statutory right

to judicial review. See Section 516 of the Tariff Act of 1930, as

amended, 19 U.S.C. § 1516(a)(2)(A).3 The court, however,

consolidated this case with Court No. 06-00228, Techsnabexport v.

United States, and remanded the consolidated case to Commerce.

Techsnabexport v. United States, __ CIT __, 515 F. Supp. 2d 1363

(2007) (“Tenex”).4 To assure consideration of all aspects of the

standing issue, the court instructed that, on remand, Commerce

review its denial, in the agency’s initial proceedings, of

“interested party” status to AHUG. __ CIT at __ n.4, 515 F. Supp.

2d at 1364-65 n.4.5

Commerce subsequently issued its remand results. See Final

Results on Redetermination Pursuant to Court Remand Techsnabexport

v. United States Cons. Court No. 06-00228, Slip Op. 07-143 (Sept.

26, 2007), A-821-802, Suspension Agreement (Dec. 21, 2007), Admin.

R. Pub. Doc. [Technsabexport v. United States] 20, available at

3

Further citations to the Act, unless otherwise noted, are

to the 2006 version of the U.S. Code.

4

Familiarity with this decision is presumed. The Tenex

plaintiff’s standing to seek review in 06-0028 was uncontested.

The two cases were later severed, when, upon the request of the

Tenex plaintiff, that case was dismissed.

5

The court deferred ruling on AHUG’s standing, finding this

to be one of those rare cases in which the questions regarding

jurisdiction were intertwined with the merits of the case, and

that further information would be necessary.

Court No. 06-229 Page 5

http://ia.ita.doc.gov/remands/07-143.pdf (last visited Sept. 9,

2009) (“Remand Results”). Relevant to this litigation, Commerce,

in its volume of future imports analysis, relied on a public report

from the International Trade Commission (“ITC”). See Uranium from

Russia, USITC Pub. 3872, Inv. No. 731-TA-539-C (Second Review)

(Aug. 2006), available at 2006 ITC LEXIS 537. Commerce noted the

ITC report’s mention of certain “contingent contracts” that the

Russian uranium industry had entered into with American utilities.

Remand Results 36-37. Despite the reference to these “contingent

contracts,” Commerce once again denied AHUG status as an

“interested party.” Id. 49-52. First, Commerce determined that

AHUG members were not “producers,” given that AHUG members “do not

contract directly with the Russian [low-enriched uranium (“LEU”)]

producer . . . . [,] can only receive Russian LEU[] from USEC

itself, which USEC purchased from Tenex[,] . . . . [and] have no

control over the Russian producer’s production activities.” Id. 50-

51. Furthermore, Commerce noted that “title to the Russian LEU

from HEU does transfer from Tenex to USEC, belying AHUG’s claim

that it is the only entity that owns the LEU as a whole.” Id. 51.

Second, Commerce found that, because “USEC is the only U.S.

importer of all Russian LEU down-blended from [high-enriched

uranium (“HEU”)],” AHUG members could not qualify as “importers.”

Id.

Court No. 06-229 Page 6

B. The Court’s Dismissal of AHUG’s Complaint

Reviewing Commerce’s remand results, the court considered the

standing issue raised by Defendants United States’ and USEC’s

motions, pursuant to USCIT R. 12(b)(1), to dismiss AHUG’s complaint

for lack of subject matter jurisdiction. See AHUG, 2009 Ct. Intl.

Trade LEXIS 60, at *16-22. Defendants argued that AHUG fails to

qualify as an interested party statutorily authorized to challenge

Commerce’s review decision. In response, AHUG argued that many of

its members have “entered into negotiations and signed agreements

[i.e., contingent contracts] with Techsnabexport . . . or its agent

for the purchase of Russian [enriched uranium product (“EUP”)] or

enrichment services,” and that the contracts confer upon the

utility companies entering into them status as importers of the

subject merchandise.6 (Supplemental Br. of the Ad Hoc Utilities

Group on the Relevance & Effect of Supreme Ct.’s Eurodif Decision

(“AHUG Supplemental Br.”) 5-6); see also 28 U.S.C. § 2631(c); 19

U.S.C. § 1677(9)(A).

The court agreed, in part, with the government and USEC and

accordingly dismissed AHUG’s complaint for lack of standing. In so

doing, the court noted that 28 U.S.C. § 2631(c) and 19 U.S.C. §

1516a(a)(2)(A) require that, in order to obtain judicial review, a

6

AHUG abandoned its argument that it had standing as a

“producer.”

Court No. 06-229 Page 7

party must be “interested” as defined by 19 U.S.C. § 1677(9).7

AHUG, 2009 Ct. Intl. Trade LEXIS 60, at *16-17. After reviewing

the record and the filings before it, the court determined that

under any of the statutory definitions of “importer” --

including either as a group of individual companies or,

arguably, as a trade or business association -- AHUG does

not meet the standing requirements stated by section

2631(c).

Id. at *17. The court reasoned that 19 U.S.C. § 1677(9)(A)

“precludes standing on the part of a group with a majority of

members that are not producers, exporter or importers,” id.

(footnote omitted) (citing Am. Grape Growers Alliance for Fair

Trade v. United States, 7 CIT 389 (1984)), and, accordingly, the

court required AHUG to demonstrate either “that it would be

considered a ‘trade or business association’” or “that it is a

‘multiplied form of a single’ importer.” Id. at *17-18 (quoting Am.

7

“A civil action contesting a determination listed in

section 516A of the Tariff Act of 1930 [19 U.S.C. § 1516a] may be

commenced in the Court of International Trade by any interested

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

the matter arose.” 28 U.S.C. § 2631(c). The meaning of the term

“interested party,” as used in 28 U.S.C. § 2631(c)(2000), is

found in 19 U.S.C. § 1677(9). See 28 U.S.C. § 2631(k)(1) (“In

this section . . . ‘interested party’ has the meaning given such

term in section 771(9) of the Tariff Act of 1930 [19 U.S.C. §

1677(9)].”). 19 U.S.C. § 1677(9) defines “interested party” as,

among other definitions not relevant to this proceeding, “a

foreign manufacturer, producer, or exporter, or the United States

importer, of subject merchandise or a trade or business

association a majority of the members of which are producers,

exporters, or importers of such merchandise.” Id. § 1677(9)(A).

Court No. 06-229 Page 8

Grape Growers, 7 CIT at 389).8 “The former requires only a

majority of members, whereas the latter would require all members,

to qualify as ‘importers’ to gain standing, where no member appears

individually.” Id. at *18 (citing RSI (India) Pvt., Ltd. v. United

States, 12 CIT 84, 86, 678 F. Supp. 304, 306 (1988)(“Congress has

made an exception [from the requirement that all members satisfy

standing requirements] only for importers when they are the

majority of the members of a trade or business association.”)).

The court recognized that AHUG, in its briefing, identified

itself as a group of individual companies, not a trade or business

association, that “has no legal existence or status separate from

its members.” Id. at *19 (citation omitted). Thus, AHUG would be

required to demonstrate that “all of its members share the same

qualities that qualify them for standing in the action before the

court.” Id. (emphasis added). However, AHUG only presented

evidence that “a number of AHUG members entered into negotiations

with Russian uranium suppliers or their agents.” Id. (citation

omitted). Indeed, “AHUG itself concludes that its evidence

demonstrates that far fewer than half of its members ‘would qualify

as United States importers under 19 U.S.C. § 1677(9)(A).’” Id. at

8

A “multiplied form of a single exporter” is identified as

“the unified appearance of those[,] who could appear

separately[,] [for] administrative and judicial convenience.” Am.

Grape Growers, 7 CIT at 389.

Court No. 06-229 Page 9

*20 (citations omitted).9

Furthermore, the court went on to note that “even if AHUG were

a ‘trade or business association,’ standing would still be

lacking,” as “[a] small minority [of interested parties within a

group] does not a majority make, and will not give AHUG standing in

this case.” Id. at 20-21.10

C. AHUG’s Motion for Rehearing

In moving for reconsideration of the dismissal, AHUG first

argues that the court’s treatment of it in a “unitary nature is a

manifest error of fact.” (Mot. of Certain Members of the Ad Hoc

Utils. Group for Reh’g Pursuant to USCIT Rule 59 (“AHUG Mot.”) 2.)

According to AHUG, it is

not a trade association, business group, or any other

organized, unitary entity [but is rather] an ad hoc

collection of independent utilities that seek to

facilitate their efforts in this proceeding by acting

under a common name. [AHUG] was intended to facilitate

the litigation process and conserve judicial resources,

by avoiding the need for separate filings by each utility

. . . and providing a convenient short-hand reference for

the utilities as a whole. That cooperation did not

create a unitary entity capable of replacing the

independent participation of AHUG’s members.

9

The court took no position on whether individual utility

companies that entered into contingent contracts, had they sought

review in their own right, would constitute “interested parties”

under the statute. Id.

10

Unrelated to this motion, the court additionally held

that, in light of United States v. Eurodif S.A., ___U.S.___, 129

S. Ct. 878 (2009), “AHUG’[s] members . . . may n[ot] be

considered the owners of the enriched LEU at issue” and thus

“AHUG may no longer claim to have standing as a producer.” AHUG,

2009 U.S. Dist. LEXIS 60, at *16.

Court No. 06-229 Page 10

(Id. 2-3.) AHUG asserts that “AHUG’s members, including those with

standing in this proceeding, have appeared as plaintiffs on their

own behalf.” (Id. 3 (emphasis in original).) In support of this

statement, AHUG notes that its Summons, Complaint and all other

briefs and papers were “filed on behalf of AHUG and its individual

members.” (Id. & 4 n.2.) Moreover, AHUG maintains that “[o]n the

Form 13, Disclosure of Corporate Affiliations and Financial

Interest, AHUG reported its utility members as individual corporate

parties . . . [and] did not report itself as a trade association.

. . .” (Id. 3.) For these reasons, AHUG contends, those cases

cited by the court in its opinion apply only to “the standing of

formal groups, not the standing of individual members of ad hoc

groups who participate in their individual capacities.” (Id. 4-5

(citing Am. Grape Growers, 7 CIT at 389; RSI (India) Pvt., 12 CIT

at 86, 678 F. Supp. at 306).)11

STANDARD OF REVIEW

The court will grant a rehearing “only in limited

circumstances,” such as for “1) an error or irregularity, 2) a

serious evidentiary flaw, 3) the discovery of new evidence which

even a diligent party could not have discovered in time, or 4) an

accident, unpredictable surprise or unavoidable mistake which

11

Although, at the time of the court’s decision, AHUG was

composed of at least sixteen members, AHUG’s current motion is

filed “by [three utility companies which] qualify as interested

parties because they entered into one or more ‘contingent

contracts’ with Russian suppliers.” (Id. 1 n.1.)

Court No. 06-229 Page 11

impaired a party’s ability to adequately present its case.” Target

Stores v. United States, __ CIT __, __, 471 F. Supp. 2d 1344, 1347

(2007) (citing Kerr-McGee Chem. Corp. v. United States, 14 CIT 582,

583 (1990)). “The court will not grant such a motion merely to

give a losing party another chance to re-litigate the case or

present arguments it previously raised.” Totes-Isotoner Corp. v.

United States, __ CIT __, __, 580 F. Supp. 2d 1371, 1374 (2008)

(citation and quotation marks omitted), appeal docketed on other

grounds, No. 2009-1113 (Fed. Cir. Dec. 16, 2008). Accordingly, the

purpose of rehearing or reconsideration is “to direct the Court’s

attention to some material matter of law or fact which it has

overlooked in deciding a case, and which, had it been given

consideration, would probably have brought about a different

result.” Target Stores, __ CIT at __, 471 F. Supp. 2d at 1349

(quoting Agro Dutch Indus. Ltd. v. United States, 29 CIT 250, 254

(2005)); Former Employees of BMC Software, Inc. v. United States

Sec’y of Labor, Slip Op. 08-102, 2008 Ct. Intl. Trade LEXIS 102, at

*4-6 (CIT Sept. 26, 2008).

AHUG’s motion, by alleging “error” in the court’s July 15

opinion, invokes only the first ground for rehearing. Applying

this standard, the court will address each of AHUG’s arguments in

turn.12

12

As the court recognized in its prior order, a plaintiff,

as the party seeking to invoke the Court’s jurisdiction, bears

the burden to establish its standing to bring its action. See

Court No. 06-229 Page 12

DISCUSSION

I. Change in the Specification of AHUG Members Does Not Provide

Grounds for Rehearing

AHUG first seeks rehearing of the court’s ruling by moving--

rather than on behalf of all sixteen of its utility company

members--only on behalf of three of the utility companies that

allegedly entered into contingent contracts with the Russian

uranium industry. (See AHUG Mot. 1 n.1.) However, a change in the

makeup of AHUG does not provide adequate grounds for rehearing.

The court will only grant rehearing in the event of “error” of fact

or “discovery of new evidence” that AHUG could not have discovered

prior to the court’s opinion. See Target Stores, __ CIT at __, 471

F. Supp. 2d at 1347. AHUG does not claim that the court committed

error as to the number or names of AHUG members at the time of the

court’s decision, and, indeed, it could not, as the court relied

upon the very Form 13 Disclosure Statement that AHUG contends makes

AHUG members individual parties to this litigation. See AHUG, 2009

Ct. Intl. Trade LEXIS 60, at *20-22 & 20 n.18.

Further, AHUG may not obtain relief through rehearing where it

is merely attempting to advance arguments it could have readily

asserted before. See United States v. Matthews, __ CIT __, __, 580

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Raines

v. Byrd, 521 U.S. 811, 818 (1997). Therefore, AHUG has the

burden to demonstrate that its members satisfy the statutory

standing requirements. See 28 U.S.C. § 2631(c); 19 U.S.C. §

1677(9).

Court No. 06-229 Page 13

F. Supp. 2d 1347, 1349 (2008), aff’d, No. 2009-1106, 2009 U.S.

App. LEXIS 16065 (Fed. Cir. July 22, 2009) (per curiam); see also

Waugh v. Williams Cos. Long Term Disability Plan, 323 F. App’x 681,

685 (10th Cir. 2009) (motion for rehearing properly denied when

movant was not seeking to correct manifest errors of law or present

newly discovered evidence, but “instead [was] attempting to advance

arguments she could have readily asserted before”) (citation and

quotation marks omitted); Carroll v. Nakatani, 342 F.3d 934, 945

(9th Cir. 2003) (a motion for rehearing “may not be used to raise

arguments or present evidence for the first time when they could

reasonably have been raised earlier in the litigation”) (citation

omitted); 12 James Wm. Moore et al., Moore’s Federal Practice §

59.13[2][d][vii] (3d ed. 2009) (“Evidence that was available and

known during the trial, but that was not submitted to the court,

does not constitute sufficient grounds for a Rule 59 motion.”)

(citation omitted).

Court No. 06-229 Page 14

II. AHUG Members are not Individually “Plaintiffs” in this

Litigation

Second, AHUG alleges that the court erred in categorizing AHUG

as a group rather than considering all AHUG members as individual

plaintiffs.13

The court disagrees. According to the Rules, all parties to

a civil action before the court must be properly identified in the

caption of the initial pleading(s) in which they are named, i.e.,

the summons and complaint. USCIT R. 10(a);14 see also Fed. R. Civ.

13

The court notes that AHUG’s position on rehearing seems

inconsistent with a number of court filings in which it refers to

AHUG as “Plaintiff.” (See, e.g., AHUG Supplemental Br. 5 (AHUG is

“plaintiff in this case”; Compl. 1 (referring to AHUG as

“plaintiff” suing “on behalf of its members”; the members were

not named as “plaintiffs”).)

14

USCIT R. 10(a) states that “[e]very pleading must have a

caption with the court’s name, a title[,] a court number, and a

Rule 7(a) designation. The caption of the summons and the

complaint must name all the parties; the title of other

pleadings, after naming the first party on each side, may refer

generally to other parties.” USCIT Rule 10 corresponds to

Federal Rule of Civil Procedure 10.

Congressional intent behind Rule 10, which discounts claims

where the complaint fails to sufficiently identify a party, is

rooted in concern for providing notice to the parties in an

action and protecting the public interest. See Doe v. Rostker, 89

F.R.D. 158, 160 (N.D. Cal. 1981)(holding the purpose behind Fed.

R. Civ. P. 10 “is not solely one of administrative convenience

[but] serves to apprise the parties of their opponents, and it

protects the public’s legitimate interest in knowing all the

facts and events surrounding court proceedings”).

Although AHUG claims that three utility companies constitute

plaintiffs in this action, AHUG wishes the names of these

purported plaintiff companies to remain anonymous. Federal

district courts may, under appropriate circumstances, allow

Plaintiffs to proceed under anonymous names. See EW v. N.Y. Blood

Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003) (listing four factors

as which counsel in favor of allowing plaintiff to be designated

Court No. 06-229 Page 15

P. 10(a). The summons and complaint in this action named a single

plaintiff: AHUG. Although in subsequent pleadings all parties need

not be fully named, in the original complaint, the names of all

parties must be included. USCIT R. 10(a); Yousefi v. Lockheed

Martin Corp., 70 F. Supp. 2d 1061, 1064-65 (C.D. Cal. 1999)

(striking 134 putative class members, who moved, together with

existing class-action plaintiffs, as self-named “Lockheed Martin

Group,” to consolidate the actions; the court held that “[a]side

from Yousefi, Kane, and Kretchmeyer, the [Lockheed Martin Group’s]

members are not named plaintiffs in any of the suits” and

accordingly “the 134 other members of the Lockheed Plaintiffs

Group, which are not party to the three suits subject to

consolidation, cannot move to consolidate the actions”), aff’d, 126

F. App’x 785 (9th Cir. 2005). See also Mitchell v. Maynard, 80 F.3d

1433, 1441 (10th Cir. 1996) (affirming refusal to enter judgment

against party not named in complaint but referred to in brief);

Zocaras v. Castro, 465 F.3d 479, 483-85 (11th Cir. 2006) (affirming

dismissal a case where the plaintiff prosecuted an action under

alias without revealing his true name in the pleadings pursuant to

Fed. R. Civ. P. 10).

A plaintiff, as a party who initiates a civil action by filing

an initial complaint, must identify itself in the caption. 2 Moore

“John Doe”). However, the court notes that neither AHUG nor any

of the three utility companies have asked for “John Doe Corp.”

designation in this case.

Court No. 06-229 Page 16

et al., supra, § 10.02[2][a]-[c]. Plaintiff AHUG drafted its

complaint, and thus the court relies on the complaint’s caption to

discern the plaintiff in the suit. See Williams v. Bradshaw, 459

F.3d 846, 849 (8th Cir. 2006)(holding that the caption “is entitled

to considerable weight when determining who the plaintiffs to a

suit are since plaintiffs draft complaints”). The individual

utilities do not individually appear in the Summon’s or the

Complaint’s captions, and said utilities are not individually

parties or plaintiffs. See Yousefi, 70 F. Supp. 2d at 1064-65.

Nor does the fact that the corporate entities are listed in

the Form 13 disclosure statement change the effect of Rule 10. Cf.

Maynard, 80 F.3d at 1441; Klingler v. Yamaha Motor Corp., 738 F.

Supp. 898, 910 (E.D. Pa. 1990) (striking down claims where the

defendants were not named in the caption but only referred to in

the body of the complaint). A disclosure statement, though a

required supplemental filing, is not a complaint or summons. See

USCIT R. 3(i) (“The disclosure statement must be filed with the

entry of appearance (or with the summons if no separate notice of

appearance is required)”); see also Fed. R. Civ. P. 7.1(b)(1).15

15

Plaintiff argues that “AHUG” is a short hand method of

referring to the “plaintiffs,” because submitting filings for

each corporate entity would be wasteful. (See AHUG Mot. 3.)

Rules 10(a) does allow for the use of short-form for “other

pleadings.” USCIT R. 10(a) (“the title of other pleadings after

naming the first party on each side may refer generally to other

parties.”); see also Adkins v. Safeway, Inc., 985 F.2d 1101, 1102

(D.C. Cir. 1993). However, while the use of shorthand may be

appropriate for “other pleadings,” again, the rule requires all

Court No. 06-229 Page 17

As a consequence, the individual AHUG members do not

constitute plaintiffs in this action.

III. AHUG Does Not Satisfy Section 1677(9)

Third, AHUG attempts to argue that, given its particular

nature as an “ad hoc” group--brought together for efficiency of

litigation only--rather than a “formal” group, case law and

statutory standing requirements for groups do not apply to it.

AHUG provides no support for this proposed special treatment of “ad

hoc” groups, and the court can find no support for this

distinction. As it noted in its earlier opinion, the court has

recognized groups such as AHUG as a “multiplied form of a single”

importer that is “identified as ‘the unified appearance of those[,]

who could appear separately[,] [for] administrative and judicial

convenience.” AHUG, 2009 Ct. Intl. Trade LEXIS 60, at *18 (quoting

Am. Grape Growers, 7 CIT at 389-90). For such an appearance, as

opposed to trade or business associations--which are subject to a

statutory exception16--all members of the group constituting a

parties to be named in the caption of the complaint. AHUG’s

claim of conserving resources stands in direct contrast to the

intent behind USCIT Rule 10(a).

16

In accordance with 19 U.S.C. § 1677(9)(A), a “trade or

business association” may qualify as an “interested party” if “a

majority of the members [] are producers, exporters, or importers

of such merchandise.” This requirement has been construed to

exclude groups in which only a small minority of members qualify

as interested parties. See AHUG, 2009 Ct. Intl. Trade LEXIS 60,

at *20-21 (citing Zenith Radio Corp. v. United States, 5 CIT 155,

156-57 (1983); Special Commodity Group on Non-Rubber Footwear

From Braz., Am. Ass’n of Exps. & Imps. v. United States, 9 CIT

Court No. 06-229 Page 18

“multiplied form of a single” importer must “qualify as ‘importers’

to gain standing, where no member appears [as a plaintiff]

individually.” Id. As was noted by the court, this was clearly not

the case here, as only a small minority of AHUG members claimed to

have such “importer” status.

AHUG mistakenly argues that the court committed an error of

fact by basing its opinion on the assumption that AHUG was a “trade

or business association.” To the contrary. The court recognized

that AHUG repudiated this designation. See id. at *19 (“AHUG has

identified itself as a group of individual companies, stating that

it is not a trade or business association . . . .”). Out of an

abundance of caution, and in fairness to AHUG, however, the court

noted that, even should AHUG be considered a trade or business

association, it did not meet the majority requirement. Contrary to

AHUG’s assertions, the court did not base its decision on this

factual assumption and thus whether or not AHUG qualifies as a

trade or business association was not a “material matter of law or

fact which [the court] has overlooked in deciding a case, and

which, had it been given consideration, would probably have brought

about a different result.” Target Stores v. United States, __ CIT

at __, 471 F. Supp. 2d at 1349 (citation and quotation marks

omitted).

481, 483-84, 620 F. Supp. 719, 721-22 (1985); Matsushita Elec.

Indus. Co. v. United States, 2 CIT 254, 256-59, 529 F. Supp. 664,

667-69 (1981)).

Court No. 06-229 Page 19

IV. Amendment of Pleadings

The court will permit a party to amend errors and omissions in

the naming of parties “when justice so requires.” USCIT R.

15(a)(2). See Fakhri v. United States, __ CIT __, __, 507 F. Supp.

2d 1305, 1315-16 (2007).17 However, such amendments are only

allowed “[i]n the absence of any apparent or declared reason --

such as undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, futility of amendment, etc.” Foman

v. Davis, 371 U.S. 178, 182 (1962).

Here AHUG’s delay was undue. AHUG, for the first time, asked

for leave to amend its complaint in its reply brief on rehearing,

well over a year after it first raised its argument for standing as

17

AHUG also argues that USCIT R. 17(a) requires the court

to provide it the opportunity to amend its pleadings. Rule 17 is

inapplicable to this case, as the court has not dismissed the

action on the grounds that AHUG failed to prosecute its case in

the name of the “real party in interest.” Rather, AHUG, a group

of utilities, correctly appeared as the “real party in interest”

in this suit even if statutory standing is lacking. Cf. Mitchell

Food Prods. Inc. v. United States, 43 F. App’x 369, 369-70 (Fed.

Cir. 2002) (distinguishing between the concepts of standing and

“real party in interest”); Phibro Energy, Inc. v. Brown, 19 CIT

663, 669 n.11, 886 F. Supp. 863, 869 n.11 (1995) (“To determine

whether a plaintiff is a real party in interest, the Court must

determine whether the plaintiff is the entity which under

substantive law has the right sought to be enforced.”) (citation

and quotation marks omitted).

Court No. 06-229 Page 20

an importer.18 While mere delay is not a reason to deny leave,

where the delay is “‘undue’”, such delay requires limiting the

opportunity to amend. Datascope Corp. v. SMEC, Inc., 962 F.2d 1043,

1045 (Fed. Cir. 1992) (citation omitted); Tenneco Resins, Inc. v.

Reeves Bros., Inc., 752 F.2d 630, 634-35 (Fed. Cir. 1985).

Here, the court finds that AHUG’s “undue delay” weighs against

permitting amendment. First, AHUG was fully on notice that this

issue was in play and yet failed, until now, to ask for leave to

amend its complaint. This case was filed in 2006, at which point

AHUG asserted standing as a “producer” pursuant to this court’s

holding in USEC Inc. v. United States.19 Furthermore, “importer”

18

AHUG first referenced its standing as an “importer” in

its March 31, 2008 brief to the court:

a number of AHUG members qualify as importer of record

under [the contingent contracts]. . . . Because its

members qualify as interested parties under 19 U.S.C. §

1677(9), AHUG respectfully requests that the Court find

that AHUG has standing before the Court under 28 U.S.C.

§ 2631(c).

(Resp. of Ad Hoc Utils. Group to the Court’s Req. for

Supplemental Info. on Contingent Contracts Relied Upon by

Commerce in its Remand Results 8-9.)

19

In USEC Inc. v. United States, 27 CIT 489, 259 F. Supp.

2d 1310 (2003), this Court held that Commerce’s decision to treat

“SWU contracts” for uranium enrichment as sales of enriched

uranium subject to antidumping investigation -- rather than as

“tolling” or subcontracting arrangements -- was unsupported by

substantial evidence, as there was no evidence that the enricher

ever took ownership of the goods. 27 CIT at 506, 259 F. Supp. 2d

at 1326. AHUG relied USEC to assert its ownership of the uranium

through the enrichment process and thus standing as a “producer”

of the uranium. However, as the court previously noted:

Court No. 06-229 Page 21

standing was at issue almost one month before the U.S. Supreme

Court granted certiorari in Eurodif and almost three months before

the court stayed this matter pending the Supreme Court’s decision.

See United States v. Eurodif S.A., 128 S. Ct. 2054 (April 21,

2008). Subsequently, importer standing remained at issue for

almost five months following Eurodif’s issuance and the dissolution

of the stay. During this latter time period, the court gave AHUG

ample opportunity to explore the “importer” standing issue through

repeated briefings to the court as well as specifically-worded

questions from the court. See Te-Moak Bands of W. Shoshone Indians

of Nev. v. United States, 948 F.2d 1258, 1262-63 (Fed. Cir. 1991)

(“At some point in the course of litigation, an unjustified delay

preceding a motion to amend goes beyond excusable neglect, even

when there is no evidence of bad faith or dilatory motive.”)

(quoting Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1025 (5th

Cir. Unit A Nov. 1981)); id. at 1261 (“A litigant’s failure to

assert a claim as soon as he could have is properly a factor to be

considered in deciding whether to grant leave to amend.”) (quoting

After Commerce’s revocation of its tolling regulation

and the Supreme Court’s [Eurodif] decision, it is clear

that Commerce may reasonably treat SWU transactions as

sales of goods owned by the enricher. As AHUG’[s]

members, as opposed to the enricher, may no longer be

considered the owners of the enriched LEU at issue,

AHUG may no longer claim to have standing as a

producer.

AHUG, 2009 Ct. Intl. Trade LEXIS 60, at *16.

Court No. 06-229 Page 22

Carson v. Polley, 689 F.2d 562, 584 (5th Cir. 1982)).

Second, judgment has already issued in this case, and AHUG’s

motion to amend was not on file previous to the court’s dismissal

of the case and judgment thereon. See Summers v. Earth Island

Inst., __ U.S. __, __, 129 S. Ct. 1142, 1153 (2009); Datascope, 962

F.2d at 1044-47. Compare Pinnacle Pigging Sys. v. Eliminator

Pigging Sys. USA, Inc., 55 F. App’x 943, 945-46 (Fed. Cir. 2003)

(per curiam); Phonometrics, Inc. v. Resinter N. Am. Corp., No.

97-1101, 1997 U.S. App. LEXIS 26574, at *1, 7 (Fed. Cir. Sept. 17,

1997). AHUG has only now, in a footnote to its reply on rehearing,

mentioned pleading amendment.

Third, while the court will often grant leave to amend when

“mere technical irregularities in the filing of procedural papers”

exist, Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580

(Fed. Cir. 1993) (citations omitted), the court views the omission

of the individual companies rather as a “strategic” decision in

litigation. See Trans-Spec Truck Serv. v. Caterpillar Inc., 524

F.3d 315, 327 (1st Cir. 2008); Strub v. Axon Corp., Nos. 97-1221 &

97-1222, 1998 U.S. App. LEXIS 20249, at *30 (Fed. Cir. Aug. 17,

1998). The omission of AHUG members as plaintiffs, and indeed,

specifically the failure to drop AHUG members who would not quality

as importers, was not mere formality in pleading; AHUG itself

recognizes that the AHUG members joined together to pool resources

to facilitate the litigation in a cost-effective way.

Court No. 06-229 Page 23

Lastly, AHUG provides no compelling reason for its delay. See

Engineered Prods. Co. v. Donaldson Co., 147 F. App’x 979, 987 (Fed.

Cir. 2005) (applying Thompson-El v. Jones, 876 F.2d 66, 67 (8th

Cir. 1989)); Te-Moak Bands, 948 F.2d at 1263 (collecting cases);

Tenneco Resins, 752 F.2d at 634; Zhejiang Mach. Imp. & Exp. Corp.

v. United States, 29 CIT 1266, 1271 (2005) (“a key element of the

analysis is the excusability of any delay in raising the new

issue”) (citation omitted).

Accordingly, the court determines that “justice” does not

require amendment here.20

20

The court also observes that, pursuant to USCIT R. 21,

“[p]arties may be dropped or added by order of the court on

motion of any party or on its own initiative at any stage of the

action and on such terms as are just.” The U.S. Supreme Court

has instructed that “it is well settled that Rule 21 invests

district courts with authority to allow a dispensable nondiverse

party to be dropped at any time, even after judgment has been

rendered.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,

832 (1989). USCIT R. 21 tracks the language in Fed. R. Civ. P.

21. However, even should Newman-Green be extended to allow AHUG

to dispose of non-importer members after the court’s entry of

judgment, “[i]n applying Rule 21, the court is governed by the

liberal amendment standards of Rule 15(a).” Insituform Techs.,

Inc. v. Cat Contr., Inc., 385 F.3d 1360, 1372 (Fed. Cir. 2004)

(citation omitted). As explained above, AHUG does not merit Rule

15 amendment.

Court No. 06-229 Page 24

CONCLUSION

Accordingly, upon consideration of AHUG’s motion, the court

does not find any error of law or fact sufficient to support

rehearing of this matter.

The court accordingly DENIES AHUG’s Motion.

It is SO ORDERED.

/s/

Donald C. Pogue, Judge

Dated: September 15, 2009

New York, New York