ITC Asks Trade Court to Dismiss Case Seeking to Halt Release of BPI

The case concerns a past ITC injury investigation on freight rail couplers and parts thereof from China and a present injury investigation on the same goods from China and Mexico. ARC is a U.S. producer and importer of the subject merchandise, and is affiliated with a maquiladora factory, ASF-K de Mexico -- the only Mexican manufacturer of the subject goods. ARC originally employed Wiley, including partner Daniel Pickard, to represent it. At the time, Pickard filed an antidumping and countervailing duty petition on behalf of ARC and McConway & Torley (M&T) foundry to start the prior injury investigation. ARC then withdrew from the petition, leaving Pickard to carry on with M&T and a labor union that replaced ARC during the injury determinations. An administrative protective order (APO) in this investigation was issued.

In that investigation, the ITC unanimously voted that the U.S. industry was not materially harmed. During the inquiry, though, Pickard had moved from Wiley to Buchanan Ingersoll. The ITC issued its injury determination in June, when the APO covered only Pickard and two non-attorneys at Wiley. After the determination, in July 2022, Buchanan then filed an amendment to the APO adding seven attorneys and two non-attorney personnel from Buchanan.

Days later, Buchanan filed a petition to start another injury investigation on the freight rail couplers, this time including Mexican imports as well as Chinese, with M&T and the union standing as the two petitioners. Pickard, who represented ARC, included Mexican imports in the petition knowing that the only Mexican imports came from ARC's affiliate. Describing this as a "betrayal," ARC originally took to the ITC to argue that Pickard and Buchanan should be disqualified from the proceeding and dismissed from the APO (see 2210120062). The company filed suit at CIT to argue that the ITC's decision to give BPI access to Buchanan violated the APA and its 5th Amendment rights (see 2210170084).

The ITC now argues that the case should be dismissed. The plaintiffs did not give the ITC time to consider and respond to its claims made before the commission, meaning the companies failed to exhaust their administrative remedies, the brief said. One of the plaintiffs' claims said the ITC's release of BPI under the APO will violate their due process rights. The ITC said this claim is moot before the trade court because the commission does not adjudicate alleged violations of a state bar's rules of professional conduct or the American Bar Association's professional conduct model rules -- the source of the plaintiffs' allegations. The plaintiffs' claims are also premature, the defendant said, noting a final agency action must be made to be contested, and in this instance the ITC had not made one.

The commission further argued that the trade court lacked subject-matter jurisdiction. The plaintiffs invoked Section 1581(i) -- the court's "residual" jurisdiction -- to make their claim. The defendant said the invocation of this statute ignores its plain language because this proceeding does not deal with laws providing for "revenue from imports or tonnage" or tariffs and duties. "On their face, these allegations do not bear any substantive connection to tariffs or duties or any other matters specified in sections 1581(i)(1)(A)–(C)," the brief said. "In short, no persuasive reading of these statutory provisions, or any of the jurisdictional provisions under section 1581, supports the Court’s exercise of jurisdiction over either of the two counts in the Complaint."

To state a claim for which relief can be granted, the plaintiffs must identify a final agency action, show there are no other adequate remedies in a court and show it's plausible they are entitled to the relief sought for each claim. The plaintiffs failed to point to a final agency action and demonstrate they're statutorily entitled to relief sought, instead making their case one for which relief cannot be granted, the ITC argued. The defendant said the plaintiffs have not shown how they will be "adversely affected or aggrieved" by the decision to grant APO access to Buchanan and Pickard because their case rests on the claims of "unspecified harm" they will suffer.

"Despite that Mexico was not a subject country in [the first freight rail couplers investigation], the disparity between Amsted’s position and Petitioner’s theory of the case -- specifically that Amsted shifted production to Mexico -- was known to Plaintiffs as early as preliminary phase of those investigations," the brief said. "Yet, at no time during the FRC I proceedings did Amsted or any other party -- including the three Plaintiffs ... who participated in that investigation -- object to Attorney’s or the Firm’s access to BPI under the [previous] APO."