Entry of Appearance 'Vital' to Establish Standing Before ITC, US Says
The International Trade Commission regulation requiring a party to file an entry of appearance in order to establish standing to sue a commission decision before the Court of International Trade is lawful and in line with the relevant statute, the U.S. said. Replying to importer Pay Less Here's bid to keep its case on the ITC's critical circumstances determination on mattresses from Burma alive, the government said Pay Less doesn't have standing since it failed to file an entry of appearance (Pay Less Here v. United States, CIT # 24-00152).
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Pay Less argued that it should be allowed to stay in court since it filed questionnaire responses during the investigation (see 2411130046). The importer claimed that nothing in the ITC's regulation suggests that not filing the entry of appearance forecloses its status as a party to the proceeding irrespective of its level of participation.
In response, the U.S. said this claim "misses the point that the statute not only requires that a plaintiff be an 'interested party,' but must also be a 'party to the proceeding.'" And to be a party to the proceeding, the ITC established in its regulations that an entity must file an entry of appearance. The government chided Pay Less' counsel, attorneys at Crowell & Moring, noting that Crowell is "an experienced firm well-versed in trade law."
The firm is aware of this regulation and has "consistently complied" with the requirement, the U.S. said, noting dozens of times where Crowell attorneys have filed entries of appearances in ITC proceedings. It's thus "surprising that Crowell now claims for purposes of this action that an entry of appearance is not an essential requirement to appear, but rather is a nonconsequential 'single pro forma sheet of paper,'" the brief said.
The government then argued that an agency's regulation laying out how an interested party will be deemed to participate in a proceeding before the agency "will be considered lawful and consistent with the statutory provision on standing if the regulation requires a form of participation that is 'reasonably convey[s] the separate status of a party'" and gives the agency notice of a party's concerns. A questionnaire response isn't enough, since the ITC issues questionnaires to "all relevant market participants," including to firms that don't qualify as interested parties, making an entry of appearance "vital" to providing the "requisite notification," the U.S. said.
Pay Less cited a host of case law addressing standing requirements before the Commerce Department, which the U.S. dubbed irrelevant. None of these cases backs the importer's "claims of standing," and, in addition, the nature of ITC and Commerce investigations "are vastly different," the brief said.