ITC Fights Back Against LG Legal Team Challenge Over Denied Access to Safeguard Proceeding

Lawyers for LG Electronics' bid to overturn the International Trade Commission's restrictions on their participation in a solar safeguard review should be dismissed for lack of jurisdiction, the ITC argued in an Oct. 4 motion to dismiss at the Court of International Trade. Even if CIT had jurisdiction, the case is premature since there has been no "justiciable final agency action," the brief said.

During a safeguard proceeding on crystaline silicon photovoltaic cells from China, certain Curtis lawyers, namely Daniel Porter and James Durling, applied for an administrative protective order (APO) to participate as LG's counsel. Several Curtis lawyers, including 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 complaint at CIT (see 2109210054). The ITC nevertheless partially denied the Curtis lawyers' APO bid based on this prior work.

Chiming in for the first time in the case, the ITC filed a motion to dismiss and a separate motion in opposition to the LGE attorneys' bid for judgment. In the motion to dismiss, the ITC made the case that the trade court does not have jurisdiction over the case. LGE's counsel filed its suit under CIT's Section 1581(i) "residual" jurisdiction, which the ITC characterized as "narrow" and "strictly construed." According to the statute, cases under Section 1581(i) can only be filed over matters falling in the first instance under Section 1581(a)-(h) of the statute.

"That is not the case here," the ITC said. The fight over APO access cannot claim this jurisdiction since it is not a challenge of a law providing for "revenue from imports or tonnage," import tariffs or fees, or embargoes or other restrictions. "In short, no persuasive reading of section 1581(i)(1)(D), or indeed of any of the jurisdictional provisions under section 1581, supports the Court’s exercise of jurisdiction over Count One of the amended and supplemental complaint," the ITC said.

Even if it did, the ITC's decision to deny the four Curtis lawyers access to the safeguard review was not a final agency action and thus not able to be the subject of judicial review, the brief argued. In fact, the Supreme Court of the U.S. has ruled in the past 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," the ITC said, citing the 1985 case Richardson-Merrell, Inc. v. Koller.

In its brief opposing the lawyers' motion for judgment, the commission argued that the attorneys have failed to show that they are entitled to relief since judicial review is limited to a "significant procedural violation," of which the ITC's decision was not one. "Here, the Secretary examined the record before her and found that Curtis’ simultaneous representation of the government of China in a forum where parties do not have APO access, while seeking APO access of behalf of LG in proceedings before the Commission on substantially similar matters, presented a concern about the handling and use of confidential information under the APO," the brief said.

The commission also backed its authority to impose conditions on APO access that "serve legitimate purposes" and are not "overly burdensome." Part of the Curtis lawyers' case involves arguing that the commission has zero discretion to deny an APO application from an authorized applicant. But "Congress has repeatedly affirmed that this is not the case in the Title VII context," the ITC said. "To the contrary, Congress has recognized that the Commission exercises 'considerable discretion' in its administration of APOs and in imposing conditions on such orders to protect the confidentiality of information in Commission proceedings." Examples of this include deliberations from the Senate Finance Committee during the passage of the APO procedures in the Trade Act of 1979 and in the Omnibus Trade and Competitiveness Act of 1988.

The lawyers argued that the APO denials were not appropriate by arguing that they relied on mistaken assumptions, one of which is that Curtis still represented China. But proof that this relationship no longer exists was not placed before the ITC Secretary, rather conveyed through "back channel" communications with ITC staff, the commission's brief said. "Plaintiffs’ reliance on facts first introduced before this Court, and that are not on the agency record, thus is unavailing," the ITC argued. The ITC's decision also cleared the barriers of "serving legitimate purposes" and not being "overly burdensome," as required by the statute, the brief said.