Five cases being argued at the Federal Circuit in November attracted amicus briefs. Two of these cases will be argued together, and both are styled In re United States. In the first case, the United States on behalf of the International Trade Commission appeals a judgment of the Court of International Trade. The United States argues the CIT abused its discretion in denying a joint motion to redact business proprietary information submitted to the Commission under a promise of confidentiality. This is our argument preview.
In its principal brief, the United States asks the Federal Circuit to “affirm the CIT’s Merits Decision” but “modify the final judgment” to reverse the “CIT’s BPI Denial Decision.” The United States argues the Commission “properly acted within its statutory and regulatory authority” to protect “sensitive information identifiable to individual firms” by designating the information as BPI. The United States contends the CIT’s disclosure order “cannot be squared with the mandatory language of the statute requiring the court to preserve the confidential status” of the information.
Court-appointed amicus curiae Andrew J. Dhuey and co-counsel Bridget A. Clarke submitted a brief in support of affirmance. In the brief, they argue the Commission improperly “relies on a statutory framework” that governs Commission proceedings. They argue the statute “does not govern the Trade Court.” Indeed, they contend, Congress “recognized that there should be two starkly different statutory provisions concerning the same material,” provisions separately governing the actions of the Commission and the CIT. Moreover, they suggest “Congress unambiguously acknowledged the courts’ wide discretion” regarding what information should be disclosed to the public.
In its reply, the United States rejects amicus curiae‘s interpretation of the statute. According to the United States, that interpretation “fails to recognize the long history of protecting confidential information.” The United States maintains the “applicable statute mandates that the CIT preserve the confidential status of BPI.” Thus, by disclosing the information, the United States argues, the “CIT violated the statute and abused its discretion.” Furthermore, the United States continues, the statute “neither provides for nor contemplates courts engaging in any [interest] balancing.” Even if it did, however, the United States says “the balance weighs clearly against the disclosure of the BPI.”
Alex Moss, another court-appointed amicus curiae, submitted a combined supplemental response brief in support of affirmance in this appeal and in the companion case. Moss argues the “Commission’s position is both flawed and dangerous.” Moss goes on to explain that giving “judicial deference to agency confidentiality determinations” would “strip courts of their authority over public access to court records.” Furthermore, Moss argues, “concealing court and agency processes . . . would block public oversight and erode public trust.” Thus, Moss concludes, “[a]ffirmance is necessary to prevent these harms.”
The International Trade Commission Trial Lawyers Association submitted an amicus brief in support of the United States.
Oral argument is scheduled to be heard on Tuesday, November 4, 2025 at 10:00 a.m. in Courtroom 203.