ITC Fights for Dismissal of Case Over Denied Access to Safeguard Review
Counsel for LG Electronics did not prove that the International Trade Commission's decision to deny attorney access to confidential information in a safeguard proceeding constitutes a final agency action, the U.S. argued in an Oct. 8 reply brief at the Court of International Trade. Even if there existed a "speculative future basis for jurisdiction under prior case law," the LGE lawyers would have to show that the ITC secretary's actions resulted in ineffective or inadequate representation that resulted in an adverse determination, the brief said (LG Electronics USA, Inc., et al. v. United States, CIT 21-00520).
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During a safeguard proceeding on crystaline silicon photovoltaic cells from China at the ITC, Curtis lawyers Daniel Porter and James Durling applied for an administrative protective order (APO) to participate as LG's counsel. Porter and Durling were denied this APO access due to their prior work representing China at the World Trade Organization.
In 2018, China had sought consultations at the WTO over the U.S.'s safeguard measures on solar cell imports. Curtis lawyers helped China prepare for its arguments at the WTO panel, but none of China's submissions contained any confidential business proprietary information, the lawyers said in their initial complaint at CIT (see Ref:2109210054]). The ITC nevertheless partially denied the Curtis lawyers' APO bid based on this prior work.
The ITC moved to dismiss the case against the APO denials, citing its supposed broad authority to make such a denial. The commission also argued that the court did not have jurisdiction under CIT's Section 1581(i) "residual" jurisdiction, since the fight over APO access is not a challenge of law providing for revenue from imports, import tariffs or fees, or embargoes or other restrictions (see 2110060066). Responding to these claims, the Curtis lawyers said that the court did indeed have this jurisdiction, in part because the decision to deny APO access was a final agency action (see 2110080040).
In arguing this, the plaintiffs seem to "blithely dismiss the binding precedent of Richardson-Merrell, Inc. v. Koller," the ITC argued, citing the 1985 Supreme Court case which held that "an order disqualifying an attorney from serving as counsel in a pending civil case is not a final judgment on the merits and is not subject to immediate appeal." Due to this, the APO denials are not subject to judicial review, the commission said.
The plaintiffs also cited other cases cited by the ITC that held that even where there clearly is judicial review, interim procedural decisions by the ITC are not reviewable until the agency has made its final decision. The Curtis lawyers argue that these decisions should be ignored since they didn't affect an interested party's ability to participate in an underlying commission proceeding. "But, as the Commission has shown in its response brief, neither do the Secretary’s APO conditions in this matter affect LG’s ability to participate in the underlying Commission proceeding," the ITC said. LGE can still participate in the safeguard proceeding and there are other competent lawyers at Curtis who can take the case, the brief said.
"Plaintiffs seek to be absolved of their responsibility to show actual injury or harm to LG in pursuit of their positions before the agency," the brief said. "As the Commission explained in its motion, any claim that the conditions the Secretary has placed on Curtis’ APO access will affect the outcome of the final administrative decision is speculative. Potential future harm is not sufficient to establish jurisdiction."