ITC Says Evidence, Jurisdiction Not in Appellants' Favor in Attorney Conflict-of-Interest Case

The Court of International Trade doesn't have jurisdiction to hear plaintiff-appellant Amsted Rail Co.'s attorney conflict of interest case because it should have instead been filed as a challenge to the antidumping and countervailing duty investigations, and in any case ARC doesn't prove a conflict of interest existed from the participation of its former counsel in the investigations, the ITC and defendant-intervenor Coalition of Freight Rail Producers argued in a pair of reply briefs filed Feb. 22 at the U.S. Court of Appeals for the Federal Circuit (Amsted Rail Co. v. U.S., Fed. Cir. # 23-1355).

The case concerns 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, a U.S. producer and importer of freight rail couplers, originally employed Wiley, where Daniel Pickard was a partner at the time, to represent it. After filing a petition for ARC, Pickard moved to Buchanan Ingersoll. Following a negative injury determination in the original ITC case, Pickard filed a new petition naming imports of freight rail couplers from Mexico and China as the source of the injury, knowing ARC had the only imports from Mexico via its maquiladora factory. The plaintiffs described this as a "betrayal" by Pickard, and said the attorney used ARC's information against it.

CIT dismissed the case for lack of jurisdiction (see 2211160057). The plaintiffs appealed to the Federal Circuit, arguing in their opening brief that CIT had jurisdiction under Section 1581(i) (see 2301170052). ARC said it won't have the possibility of obtaining relief if it is required to wait until the end of the investigation.

In its reply, the ITC said that argument runs contrary to the company's own statements regarding the availability of Section 1581(c). ARC's claims "fall far short of establishing the indelible taint that would preclude effective review under 1581(c) and render such relief manifestly inadequate," it said, citing the Supreme Court's decision in Firestone Tire v. Risjord. In Firestone, the Supreme Court ruled disqualification denial orders fell within the class of orders reviewable on appeal after final judgment and thus are not eligible for interlocutory appeal as sought by the appellants.

An opportunity for meaningful review of a decision on disqualifying an attorney will not "perish" unless it is allowed to be immediately appealed, the ITC said. "This concept does not hinge on whether the decision not to disqualify is made by a trial court or by an administrative agency, as Amsted contends. Indeed, Amsted’s allegations and arguments of taint fail to demonstrate how review of the Commission’s disqualification determination would perish absent immediate review. To the contrary, this claim, as well as any other procedural claims that Amsted believes to have adversely affected the results of the investigations, can be reviewed by the Court of International Trade upon the conclusion of the Commission’s investigations."

The ITC also railed against ARC's "grasping and belated attempts to meet" the burden of establishing Section 1581(i) jurisdiction by amending its complaint it was already allowed to amend once before. The appellant never filed a motion for leave to amend the complaint with CIT along the trade court's rules, the ITC said. "In the face of Amsted’s own inaction, this Court should not now grant Amsted’s late request to allow such an amendment," the ITC said, claiming that even if the amendment were permitted, it fails to fix the jurisdictional issue since the additional facts "relate only to Amsted's claims that there might be 'fruits of a breach of confidence' that simply do not add up to a finding of manifest inadequacy."

The commission cited a 2012 Federal Circuit case in its brief, Sioux Honey v. Hartford Fire Insurance, to claim that, jurisdictional issues aside, there is not enough evidence to overturn the ITC's ruling on Pickard and Buchanan. In Sioux Honey, the appellate court said that while it was possible the Commerce Department and CBP engaged in actions or inactions alleged in the complaint, there was not enough detail to render their conclusions plausible.

"The same is true here: while Amsted has posited through innuendo and tenuous connection that it is possible the Attorney breached some fiduciary duty from the brief time ARC was a member of the Coalition at the beginning of the [first freight rail coupler] predecessor investigations, Amsted failed to provide any factual details rendering plausible its conclusion that the Commission’s decision not to disqualify the Attorney and Law Firm 'at this time' was improper," the brief said.