                                            Slip Op. 07-83

 UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
                                    :
UNITED STATES MAGNESIUM LLC,        :
                                    :
                        Plaintiff,  :
                                    :                  Before: MUSGRAVE, Judge
                  v.                :
                                    :                  Court No. 06-00422
UNITED STATES,                      :
                                    :
                        Defendant.  :
____________________________________:

                          MEMORANDUM OPINION AND ORDER

[Proposed intervenor filed motion for permissive intervention pursuant to USCIT Rule 24(b).
Motion denied.]

                                                                                 Dated: May 24, 2007

       King & Spalding LLP (Stephen A. Jones), for the plaintiff.

        Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of
Justice, Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Patricia M. McCarthy, Assistant Director, Civil Division, United States
Department of Justice (Stephen C. Tosini and William J. Kovatch, Jr.), for the defendant.

       Riggle & Craven (David A. Riggle and John D. Craven), for the proposed intervenor.

       This action was initiated pursuant to 28 U.S.C. § 1581(c) to contest the United States

Department of Commerce’s determinations contained in Pure Magnesium from the PRC: Final

Results of 2004–2005 Antidumping Duty Administrative Review, 71 Fed. Reg. 61,019 (ITA Oct.

17, 2006) (“Final Results”). See complaint at 11. Now before the court is proposed intervenor


       1
                By its complaint, plaintiff, pursuant to 28 U.S.C. § 1581(i), challenged the liquidation
instructions issued in this matter. See complaint Count III. Plaintiff now avows, however, that any
such action “is moot . . . because Plaintiff has not pursued this claim.” Pl.’s Resp. to TMI’s Motion
to Intervene (“Pl.’s Resp.”) at 1 n.1. Indeed, a review of plaintiff’s Brief in Support of Motion for
Court No. 06-00422                                                                              Page 2

Tianjin Magnesium International Company’s (“TMI”) motion to permissively intervene in this

matter pursuant to USCIT Rule 24(b). TMI argues that the court should grant its motion because

TMI meets the criteria for permissive intervention in that it was a party to the underlying

administrative review, that there are common questions of law and fact that directly affect it, that its

intervention would not unduly delay the litigation or prejudice the parties already to the action, that

its motion was timely filed, and that its intervention will not delay or impede the resolution of this

matter. See Mem. in Supp. of the Mot. to Intervene by TMI (“TMI’s Memorandum”) at 1–3.

Plaintiff and defendant both argue that TMI’s motion is not proper because the controlling statute

and this Court’s rules do not allow permissive intervention in actions initiated pursuant to 28 U.S.C.

§ 1581(c). See generally Pl.’s Resp. (citing 19 U.S.C. § 1516a; 28 U.S.C. §§ 1581(c), 2631(j)(1)(B);

USCIT R. 24(a); Ontario Food Indus. Assoc. v. United States, 30 CIT __, __ n.12, 444 F. Supp. 2d

1309, 1322 n.12 (2006) (stating that “under 28 U.S.C. § 1581(c), intervention may only be sought

as a matter of right.”); Geum Poong Corp. v. United States, 26 CIT 908, 909, 217 F. Supp. 2d 1342,

1343–44 (2002)), aff’d without opinion 78 Fed. Appx. 113 (Fed. Cir. 2003)); Def.’s Resp. to TMI’s

Mot. to Intervene (citing USCIT Rs. 24(a), (b); Geum Poong, 26 CIT at 909, 217 F. Supp. 2d at

1343–44)). While it may be true that TMI could have sought intervention of right earlier in this

matter or initiated its own action to contest the Final Results, see TMI’s Memorandum at 1, given

the statutory scheme and this Court’s rules and jurisprudence, the court cannot now see how TMI

may, pursuant to USCIT Rule 24(b), permissively intervene in this matter. The court, therefore,

denies TMI’s motion, and does not accept for filing the Proposed Reply of Applicant Tianjin



Judgment on the Agency Record contains no argument or support for its section 1581(i) action and,
therefore, the court considers it to have been abandoned.
Court No. 06-00422                                                                          Page 3

Magnesium International, Inc., Regarding the Motion for Judgement [sic] on the Agency Record of

Plaintiff US Magnesium, LLC.2

       SO ORDERED


                                                      /s/ R. Kenton Musgrave
                                                     R. Kenton Musgrave, Judge

       Dated: May 24, 2007
       New York, New York




       2
                Defendant suggests that the court might consider TMI’s motion to be one for
intervention of right pursuant to USCIT Rule 24(a). See Def.’s Resp. at 2. The court has considered
this option and does not find it proper to take that action because the standards for granting
permissive intervention and intervention of right are substantively different. Compare USCIT Rule
24(a) with USCIT Rule 24(b).
