ITC Can't Claim Exhaustion Defense Given Release of BPI, Plaintiffs Argue in Row Over Former Counsel

The Court of International Trade has jurisdiction to hear Amsted Rail Co.'s (ARC's) claims against the International Trade Commission's decision to grant the company's former counsel access to its business proprietary information, ARC and a group of other plaintiffs argued in an Oct. 26 reply brief. The ITC argued in a motion to dismiss that the plaintiffs failed to exhaust their administrative remedies by not giving the commission time to consider the claims and that the commission had not taken final agency action. The plaintiffs replied that since the ITC has now decided to give ARC's former counsel and his new firm -- Daniel Pickard and Buchanan Ingersoll, respectively -- access to its BPI that final agency action has been taken and administrative remedies have been exhausted (Amsted Rail Co. v. U.S. International Trade Commission, CIT #22-00307).

The case stems from a past ITC injury investigation on freight rail couplers and parts thereof from China and a present injury investigation on the same goods from China and Mexico. ARC is a U.S. producer and importer of freight rail couplers, and is affiliated with a maquiladora factory, ASF-K de Mexico -- the only Mexican manufacturer of the subject goods. ARC originally employed Wiley Rein, including partner Daniel Pickard, to represent it. At the time, Pickard filed an antidumping and countervailing duty petition on behalf of ARC and McConway & Torley (M&T) foundry to start the prior injury investigation. ARC then withdrew from the petition, leaving Pickard to continue the case with M&T and a labor union that replaced ARC during the injury determinations. An administrative protective order (APO) in this investigation was issued.

In that investigation, the ITC unanimously voted that the U.S. industry was not materially harmed. During the inquiry, though, Pickard had moved from Wiley to Buchanan. The ITC issued its injury determination in June, when the APO covered only Pickard and two non-attorneys at Wiley. After the determination, in July 2022, Buchanan then filed an amendment to the APO adding seven attorneys and two non-attorney personnel from Buchanan.

Days later, Buchanan filed a petition to start another injury investigation on the freight rail couplers, this time including Mexican imports as well as Chinese ones, with M&T and the union standing as the two petitioners. Pickard, who represented ARC, included Mexican imports in the petition knowing that the only Mexican imports came from ARC's affiliate. Describing this as a "betrayal," ARC originally took to the ITC to argue that Pickard and Buchanan should be disqualified from the proceeding and dismissed from the APO (see 2210120062). The company filed suit at CIT to argue that the ITC's decision to give BPI access to Buchanan violated the APA and its 5th Amendment rights (see 2210170084).

ITC moved to toss the case, arguing that the plaintiffs failed to exhaust their administrative remedies since they filed the CIT complaint the same day they filed a letter to the ITC on the issue. In their reply, the plaintiffs argued that when the commission decided to release the BPI, it pulled the rug out from under an exhaustion defense. The same is true of the defendant's suggestion that it has not taken final agency action, with the plaintiffs dubbing it "equally as head scratching." The companies said that the ITC's decision to release the BPI "is obviously final because it marks the consummation of the Commission’s decision-making process regarding the release."

The plaintiffs also argued that the ITC's decision to release the BPI is "arbitrary, capricious, and an abuse of discretion," for three reasons, showing that the plaintiffs are likely to succeed on the merits of the action: the commission "failed to reasonably explain its decision" without looking into the alleged APO violation; the ITC failed to explain its decision without finding whether Pickard and Buchanan violated ethical rules; and the commission "failed to follow its own rules and precedent. On the first point, the plaintiffs said that the ITC did not offer any explanation, "let alone a satisfactory one."