CIT Has Jurisdiction to Hear Fight Over Denied Access to ITC Safeguard Review, LGE Counsel Argues

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

The ITC moved to dismiss the case against the APO denials, citing its supposed broad authority to make such a denial. The commission also argued that the court did not have jurisdiction under CIT's Section 1581(i) "residual" jurisdiction, since the fight over APO access is not a challenge of law providing for revenue from imports, import tariffs or fees, or embargoes or other restrictions (see 2110060066).

In their reply brief, the Curtis lawyers said that this was a mistaken assumption. "Where, as here, the Commission has denied APO access to an interested party’s chosen counsel in such a proceeding and the interested party challenges that denial in court, its claim 'clearly raises issues regarding whether' safeguard laws 'are properly administered' by the Commission, and so Section 1581(i)(1)(D) jurisdiction attaches," the brief said. Further, Title VII in the Omnibus Trade and Competitiveness Act of 1988 -- legislation cited by the ITC in its brief -- changes its framework on the granting of APOs from a permissive "may" to a mandatory "shall," thereby limiting the ITC's discretion, the Curtis lawyers argued.

The ITC also held that the denial of APO access is not a final agency action and thus not ripe for judicial review. But since there are no other adequate remedies for the injury felt from the APO denial, the agency decision is final, the brief said. In fact, both of the prongs in the Supreme Court's test to decide when an agency action is final are met in this instance, the lawyers said. The agency had finished the decision-making process and the result of the process was one that directly affected the parties involved.

"The very existence of the APO process shows Congress’s concerns that either (a) improper disclosure of [confidential business information] or (b) lack of the required access to CBI could gravely harm a party’s interests, and that the Commission cannot simply 'un-ring' either of these metaphorical bells after a full merits resolution in the underlying proceeding," the brief said. "... The Commission now tries to create broad discretion that simply cannot be reconciled with the actual language of the regulation. And the Commission also seeks to justify its decision by putting on blinders and ignoring the actual undisputed facts of this case."

The Curtis lawyers asked the court to grant APO access with whatever conditions the ITC sees fit regarding the WTO case. "Plaintiffs repeatedly tried to engage with Commission counsel to accomplish this correct result; however, Commission had no interest even in having a discussion. That the Commission has decided, for whatever reason, that it prefers to fight in court litigation does not prevent this Court from requiring the correct result. We ask this Court to use it[s] equitable power to do so."