Armco, Inc. v. United States, Court No. 80-9-01435.
| Decision Date | 04 August 1981 |
| Docket Number | Court No. 80-9-01435. |
| Citation | 520 F. Supp. 1220 |
| Parties | ARMCO, INC. and CF&I Steel Corporation, Plaintiffs, v. The UNITED STATES, Defendant, Ah Ju Steel Co., Ltd., et al., Intervenors. |
| Court | U.S. Court of International Trade |
Freeman, Meade, Wasserman & Schneider, New York City (James M. Brachman and Beth Ring, New York City, at the oral argument and Jack Gumpert Wasserman and Beth Ring, New York City, on the briefs) for plaintiffs.
Daniels, Houlihan & Palmeter, Washington, D.C. (N. David Palmeter and Martin J. Lewin, Washington, D.C., at the oral argument and on the briefs) for intervenors.
Rivkin, Sherman & Levy, New York City (Saul Sherman, New York City, at the oral argument) for Daniels, Houlihan & Palmeter.
This is a contested motion by plaintiffs, Armco, Inc. and CF&I Steel Corporation, for an order disqualifying the attorneys for intervenors, Ah Ju Steel Co., Ltd., et al., of Korea, from representing their clients in this action, which challenges the United States International Trade Commission's (ITC) negative determination of injury in an antidumping proceeding steel nails from Korea.
On April 13, 1979, the Department of Treasury commenced an antidumping proceeding against certain steel wire nails from Korea pursuant to the Treasury Department's authority under the "trigger price mechanism". Under the then applicable antidumping statute the Treasury Department on April 17, 1979, advised the ITC that it had substantial doubt that an industry in the United States was being or is likely to be injured by reason of the importation into the United States of allegedly dumped merchandise. In transmitting this matter to the ITC, the Treasury Department stated: 1
On April 20, 1979, the ITC commenced an investigation to determine whether there was a "reasonable indication" that an industry in the United States was being or is likely to be injured by reason of the importation of the steel wire nails. On May 4, 1979, at a public hearing held by the ITC in this investigation, N. David Palmeter, a member of the firm of Daniels, Houlihan & Palmeter (Daniels' firm) appeared and testified on behalf of intervenors in this action.
Martin J. Lewin, an attorney presently with the Daniels firm is participating in this litigation. Lewin was employed by the ITC as a staff legal assistant from December 11, 1978, to January 11, 1979, when he became an Attorney Adviser to Commissioner Paula Stern, an economist, and continued such employment until June 1, 1979, when he joined the Daniels firm. He stated that while he was Attorney Adviser to Commissioner Stern during the preliminary investigation, he sent resumes to several Washington, D. C. law firms active in the trade area, and on May 9, 1979, he was interviewed at the Daniels firm, which was his first contact with the firm apart from his scheduling the interview.
May 10, 1979, according to Lewin's affidavit, he received an offer from said firm which he immediately accepted. On the same day he informed the Commissioner and it was agreed he should not assist her or otherwise participate in any aspect of any matter before the ITC in which the Daniels law firm was involved. He said that Lewin also stated that "I had no further involvement whatsoever with the inquiry and did not discuss any aspect of the matter with the Commissioner, her staff or any member or employee of the ITC."
May 17, 1979, the ITC unanimously determined that there was a "reasonable indication" of injury or likelihood of injury to a domestic industry by reason of the importation of certain wire nails from Korea.
May 19, 1980, the Department of Commerce determined that certain wire nails from Korea were being sold in the United States at less than fair value within the meaning of section 731 of the Tariff Act of 1930 (19 U.S.C. § 1673).
July 23, 1980 the ITC in a 3 to 2 decision made a Final Determination that there was neither material injury nor threat of material injury to American industry resulting from the importation of Korean nails. Plaintiffs appealed said Final Determination to this Court.
February 27, 1981, Martin A. Lewin, on behalf of the Daniels firm, counsel to Korean nail intervenors, signed and filed with this court, a motion for access to confidential documents in the investigation which led to the Final Determination under review by this court, under a protective order. Lewin's signing and filing of this motion in this litigation, prompted plaintiffs' to move for Lewin's disqualification, in view of his prior employment as Attorney Adviser by Commissioner Stern of the ITC, where he had access to confidential information in the preliminary investigation. Plaintiffs also seek the disqualification of the Daniels firm, which through its member, N. David Palmeter, the lead attorney, represented the intervenors in the preliminary investigation, the investigation leading to the Final Determination and is appearing here with Lewin.
The nature of Lewin's position as Attorney Adviser to Commissioner Paula Stern when the preliminary inquiry was in progress, was such that confidential information ordinarily would have been communicated to him.
Lewin in an affidavit and in testimony at the oral argument on the motion to disqualify, stated that he had not at anytime during his employment with the Daniels firm, or prior thereto, "discussed the substance of the inquiry" or any confidential information he had received about the Korean nails while at the ITC, with anyone in the firm. (R. 39)
Lewin, did not deny that he had access to confidential documents. He admits having read certain documents, but says he has "no specific recollection of the contents of the material reviewed" during the preliminary investigation, prior to the ITC's public hearing.
Lewin's counsel stated, at the oral argument, that after Lewin's conference with Commissioner Stern, May 10, 1979, she took him off of the case, and that Lewin left the Commission before it made the investigation for its final determination.
The matters involved in the present litigation (a review of the Final Determination of the ITC), are substantially related to the matters involved in the preliminary investigation when Lewin was an Attorney Adviser to Commissioner Stern. There could be no final determination without a preliminary inquiry to determine if there was "A Reasonable Indication of Injury."
The subject matter, certain steel wire nails from the Republic of Korea, in the preliminary inquiry was the same as in the investigation for the final determination. A reading of excerpts from the two proceedings in 1979 and 1980 clearly reveal the connection:
1. A reading of "Determination of A Reasonable Indication of Injury" in Inquiry No. AA 1921-Inq.-26, at page A-4:
The products included within the scope of this investigation are brads, nails, spikes, staples, and tacks of one-piece construction which are made of round steel wire and which are (1) less than 1 inch in length and less than 0.065 inch in diameter or (2) 1 inch or more in length, and 0.065 inch or more in diameter, and made of round steel wire, as provided for in items 646.25 and 646.26, respectively, of the TSUS.
2. The Determination of the Commission in Investigation No. 731-TA-26 (Final) under the Tariff Act of 1930, together with the information obtained in the investigation lists the same merchandise, at page 5:
The Department of Commerce determination of less-than-fair-value sales covers...
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