104 F.3d 1309 (Fed. Cir. 1997), 95-1498, Shakeproof Indus. Products Div. of Illinois Tool Works Inc. v. United States

Docket Nº:95-1498.
Citation:104 F.3d 1309
Party Name:SHAKEPROOF INDUSTRIAL PRODUCTS DIVISION OF ILLINOIS TOOL WORKS INC., Plaintiff-Appellant, v. The UNITED STATES and Department of Commerce, Defendants-Appellees.
Case Date:January 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1309

104 F.3d 1309 (Fed. Cir. 1997)

SHAKEPROOF INDUSTRIAL PRODUCTS DIVISION OF ILLINOIS TOOL

WORKS INC., Plaintiff-Appellant,

v.

The UNITED STATES and Department of Commerce, Defendants-Appellees.

No. 95-1498.

United States Court of Appeals, Federal Circuit

January 14, 1997

Page 1310

Stephen M. Creskoff, Creskoff, Dorman & Hume L.L.P., Washington, DC, argued, for plaintiff-appellant. With him on the brief was Robert T. Hume.

Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for defendants-appellees. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director. Of counsel on the brief were Stephen J. Powell, Chief Counsel, Berniece A. Browne, Senior Counsel, and Lucius B. Lau, Attorney-Advisor, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC. Of counsel was Patrick V. Gallagher, Attorney-Advisor, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC.

Before ARCHER, Chief Judge, SCHALL, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

This is an appeal from an order of the Court of International Trade dismissing a complaint filed by appellant Shakeproof Industrial Products. Shakeproof sought to compel the Commerce Department to disqualify a law firm that represented another party in an antidumping review proceeding. The Court of International Trade denied relief on the ground that the law firm's role in the review proceeding did not result in a conflict of interest. We affirm the order of the Court of International Trade dismissing Shakeproof's complaint.

I

In October 1992, the Commerce Department initiated an antidumping investigation of helical spring lock washers from the People's Republic of China and Taiwan. Six months later, Commerce published its preliminary determination in the lock washer investigation, in which it issued a preliminary dumping rate of 128.63 percent for all manufacturers, producers, and exporters from the People's Republic of China. In its final determination in the lock washer investigation, which was published in September 1993, Commerce concluded that the Hangzhou Spring Washer Plant (Hangzhou) was not a state-owned enterprise and was not subject to de facto or de jure central government control. For those reasons, Commerce concluded that Hangzhou should be assigned a separate, lower antidumping rate.

Page 1311

In November 1994, Commerce initiated the first administrative review of the lock washer antidumping order. Shortly before that administrative review began, the law firm of White & Case entered an appearance on behalf of Hangzhou and filed an application with Commerce for an "APO," i.e., the release of business proprietary information from parties to the antidumping proceeding, subject to an administrative protective order. See 19 U.S.C. § 1677f(c).

Shakeproof objected to White & Case's application; one of the reasons for its objection was that a member of the firm, Alan M. Dunn, had served as Assistant Secretary of Commerce for Import Administration at the time the lock washer antidumping investigation began in 1992. In that capacity, Shakeproof argued, Dunn had access to business proprietary information that Shakeproof had submitted in connection with its original antidumping petition. Shakeproof had filed its petition on September 4, 1992, approximately four months before Dunn left his position with the Department of Commerce.

In addition to objecting to the APO application, Shakeproof sought an opinion from the Legal Ethics Committee of the District of Columbia Bar as to whether White & Case was disqualified from representing Hangzhou in the antidumping proceedings because of Dunn's prior employment with the Department of Commerce. In its submission to the Legal Ethics Committee, Shakeproof argued that Dunn had been personally involved in the lock washer investigation while he was at Commerce, and that his firm therefore should be disqualified from representing a private party in connection with any proceedings stemming from that investigation. The Legal Ethics Committee declined to issue an opinion because of its general policy not to give opinions on specific issues involved in litigation.

Meanwhile, Dunn sought legal advice from the Commerce Department's Office of General Counsel as to whether White & Case could represent Hangzhou in the lock washer antidumping proceedings. The Office of General Counsel declined to address the applicability of bar association rules, but concluded (1) that Dunn had not been personally and substantially involved in the lock washer investigation, and (2) that White & Case was not subject to disqualification in the antidumping proceedings on account of Dunn's activities at the Commerce Department.

Dissatisfied with the opinion of the Office of General Counsel, Shakeproof asked for a formal ruling from the Commerce Department on whether White & Case should be disqualified from representing Hangzhou or at least should be excluded from any APO that might be issued in the first administrative review. In response, White & Case argued that Dunn did not personally participate in the original antidumping investigation, that he did not receive proprietary information from any party in connection with that investigation, and that he would not be personally involved in representing Hangzhou in the administrative review proceedings.

Through the Office of General Counsel, the Commerce Department issued a second opinion letter on the disqualification matter. Again, the Department concluded that Dunn had not been personally and substantially involved in the lock washer antidumping investigation and that the federal conflict-of-interest statute, 18 U.S.C. § 207, did not prohibit him or his law firm from representing Hangzhou in the first administrative review or any subsequent administrative reviews of the lock washer antidumping order. Commerce again stated that it had no authority to provide advice on the...

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