Amsted Rail Co. v. U.S. Int'l Trade Comm'n
| Decision Date | 15 November 2022 |
| Docket Number | Slip Op. 22-124,Court No. 22-00307 |
| Parties | AMSTED RAIL COMPANY, INC., ASF-K de Mexico S. de R.L. de C.V., Strato, Inc., Wabtec Corp. and TTX Company, Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, and Acting Secretary Katherine M. Hiner, in her official capacity, Defendants, and Coalition of Freight Rail Coupler Producers, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Brian B. Perryman, Faegre Drinker Biddle & Reath, LLP, of Washington, D.C., argued for Plaintiffs Amsted Rail Company, Inc. and ASF-K de Mexico S. de R.L. de C.V. With him on the briefs were Richard Ferrin, Douglas J. Heffner and Carolyn Bethea Connolly.
Ryan M. Proctor, Jones Day, of Washington, D.C., argued for Plaintiff Wabtec Corp. With him on the joint briefs was David M. Morrell.
Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, N.Y., argued for Plaintiff Strato, Inc. With him on the joint briefs was Andrew T. Schutz.
James M. Smith, Covington & Burling LLP, of Washington, D.C., argued for Plaintiff TTX Company. With him on the joint briefs were Shara L. Aranoff and Sooan (Vivian) Choi.
Andrea C. Casson, Assistant General Counsel for Litigation and Jane C. Dempsey, Attorney-Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, D.C., argued for Defendants U.S. International Trade Commission and Acting Secretary Katherine M. Hiner, in her official capacity. With them on the briefs were David A.J. Goldfine and Brian R. Allen.
At the heart of this case are sensitive and time-honored questions of federal jurisdiction and agency power, protection of confidential information, and professional responsibility. Plaintiffs Amsted Rail Company, Inc., ASF-K de Mexico S. de R.L. de C.V., Strato, Inc., Wabtec Corp., and TTX Company (together, "Plaintiffs") are parties subject to ongoing antidumping and countervailing duty investigations by Defendants the U.S. International Trade Commission and Acting Secretary Katherine M. Hiner, in her official capacity (together, the "Commission") into freight rail couplers ("FRCs")1 and related parts from China and Mexico, which were initiated by a petition filed by Defendant-Intervenor Coalition of Freight Rail Coupler Producers ("Coalition"). See Certain Freight Rail Couplers and Parts Thereof from China and Mexico, USITC Inv. Nos. 701-TA-682 & 731-TA-1592-1593 (Preliminary) ("Current Investigations"). In the course of the Current Investigations, Plaintiffs allege two instances of attorney misconduct: (1) [[ ]] ("Attorney") of [[ ]] ("Law Firm"), the Coalition's counsel before the Commission, violated the Commission's administrative protective order2 ("APO") for having used business proprietary information3 ("BPI") for improper purposes; and (2) Attorney and Law Firm continue to participate in the Current Investigations despite a disabling conflict of interest. The Commission denied Plaintiffs’ requests for further investigation of these claims.
Plaintiffs filed the instant action before the conclusion of the Current Investigations. They seek review of the Commission's actions under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706,4 and ask this court for declaratory and injunctive relief to (1) block disclosure of Plaintiffs’ BPI to the Attorney and Law Firm for the remainder of the Current Investigations; (2) disqualify the Law Firm from participating in the investigations; and (3) direct the Commission to dismiss the petition that initiated the Current Investigations. Plaintiffs plead subject matter jurisdiction under 28 U.S.C. § 1581(i), which grants to "the Court of International Trade ... exclusive jurisdiction of any civil action commenced against the United States, its agencies, or officers, that arises out of any law of the United States providing for ... [the] administration and enforcement" of "tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue." 28 U.S.C. § 1581(i)(1)(B), (D). Plaintiffs alternatively plead jurisdiction pursuant to the court's power to supervise members of its bar and as a petition for writ of mandamus.
After successfully petitioning the court for a temporary restraining order, Plaintiffs now move for a preliminary injunction against the Commission to block disclosure of Plaintiffs’ BPI to Attorney and Law Firm for the remainder of the Current Investigations. The Commission argues that the court must deny Plaintiffs’ Motion for Preliminary Injunction because the court lacks subject matter jurisdiction over Plaintiffs’ claims. The Commission first contends that 28 U.S.C. § 1677f(c)(2) removes Plaintiffs’ claims from the court's subject matter jurisdiction because § 1677f is limited to judicial review of denials, not grants, of information access. The Commission alternatively argues that 28 U.S.C. § 1581(i) jurisdiction is improper because a claim brought under 28 U.S.C. § 1581(c) would not be "manifestly inadequate," Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), and Plaintiffs should wait until their claims ripen. The Commission also contests Plaintiffs’ alternative bases for jurisdiction.
The court holds that § 1677f does not preclude jurisdiction, § 1581(c) jurisdiction is not manifestly inadequate in this case, and alternative bases for jurisdiction are unavailable. The court, therefore, lacks subject matter jurisdiction to hear Plaintiffs’ claims and grant their requested relief. The court dismisses the Amended Complaint without prejudice to refiling once a claim under 28 U.S.C. § 1581(c) is ripe, vacates the Temporary Restraining Order, and denies Plaintiffs’ Motion for Preliminary Injunction and other outstanding motions as moot.
The facts necessary for the court to determine jurisdiction are as follows.5 Amsted Rail Company, Inc. ("ARC") is a U.S. producer and importer of FRC systems and components. Am. Verified Compl. or, in the Alternative, Petition for Writ of Mandamus ¶ 9 ("Am. Compl."), Oct. 24, 2022, ECF No. 44. On June 17, 2021, ARC engaged Wiley Rein LLP ("Wiley") for legal advice related to the potential prosecution of FRC imports. Id. ¶ 20. The Attorney, then a partner at Wiley, executed the engagement letter on Wiley's behalf. Id. ¶ 22. Attorney was at the time, and is still, a member of the Bar of the District of Columbia and admitted to practice before the Court of International Trade. Id.
The Coalition is a domestic trade association. Id. ¶ 16. Through the Attorney, the Coalition filed a petition with the Commission and Commerce on September 28, 2021. Id. ¶ 25. At the time of filing, it comprised ARC and McConway and Torley, LLC ("M&T"), a domestic producer of FRCs. Id. ¶ 26. The petition alleged that certain FRCs from China were being sold in the United States at less than normal value and were being subsidized by the Chinese government, which was causing material injury to the domestic industry producing FRCs. See Freight Rail Coupler Systems and Components from China, USITC Inv. Nos. 701-TA-670 & 731-TA-1570 ("Predecessor Investigations"). The next day, the Attorney applied for access to BPI under the Commission's APO. Ex. 1 to Def.’s Resp. to Mot. for Prelim. Inj. ("Def.’s Resp."), Oct. 21, 2022, ECF No. 42. On October 6, 2021, seven days after the petition's filing, ARC filed a letter withdrawing from the petition and explained that United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC would take its place as a member in the Coalition. Am. Compl. ¶ 29. The Commission approved the Attorney's request to access BPI on October 12, 2021. Ex. 4 to Def.’s Resp. On October 14, 2021, the Commission issued the list of parties subject to the APO, which included the Attorney, Wiley, and counsel for Plaintiffs Strato, Inc. and Wabtec Corp. Ex. 5 to Def.’s Resp.
The Commission issued its preliminary determinations on November 15, 2021, and found reasonable indication of material injury to U.S. industry. See Freight Rail Coupler Systems and Components from China, 86 Fed. Reg. 64,958, 64,958 (Nov. 19, 2021). On March 1, 2022, the Attorney amended his entry of appearance and advised parties of a change in firms from Wiley to the Law Firm. Am. Compl. ¶ 39. On July 5, 2022, the Commission issued its final determinations and found that U.S. industry was not materially injured or threatened with material injury by FRC imports from China.6 See Freight Rail Coupler Systems and Components from China, 87 Fed. Reg. 41,144, 41,145 (July 11, 2022). After the final determination, but within the 30-day period to file an action for judicial review of the Commission's negative determinations, see 19 U.S.C. § 1516a(1)(C), the Attorney amended the APO to include other applicants from the Law Firm. Ex. 6 to Def.’s Resp. The Coalition did not file an appeal. On September 26, the Attorney certified destruction of all BPI released to the Law Firm under the Predecessor Investigations’ APO. Ex. 7 to Def.’s Resp.
On September 28, 2022, the Coalition, again through the Attorney, filed new petitions alleging that FRC imports from China and Mexico were being sold at less than normal value and FRC imports from China were being subsidized, resulting in material injury to U.S. FRC producers. See Certain Freight Rail Couplers and Parts Thereof from China and Mexico, USITC Inv. Nos. 701-TA-682 & 731-TA-1592-1593 (Preliminary) ("Current Investigations"). On September 29, the Law Firm filed an APO application with the Commission covering the same set of lawyers and staff covered under the APO in the Predecessor Investigations. Am. Compl. ¶ 51. As the preliminary investigation proceeded, Plaintiffs "each submitted significant amounts of extraordinarily detailed BPI in response to the Commission's...
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