As we have been reporting, five cases being argued at the Federal Circuit in November attracted amicus briefs. As we reported yesterday, two of these cases will be argued together, and both are styled In re United States. In the second case, the International Trade Commission petitions the Federal Circuit to issue a writ of mandamus ordering the Court of International Trade to retain the Commission’s designation of certain information as business proprietary information and to vacate a related opinion and order. This is our argument preview.
In its petition for a writ of mandamus, the Commission asks the Federal Circuit to direct the CIT to “retain the Commission’s designation of information as business proprietary information.” The Commission also requests the Federal Circuit vacate an order by the CIT that, according to the Commission, was “based on a misinterpretation” of the Tariff Act of 1930. The order, the petition explains, requires the Commission to “disregard its designation of certain company-specific business information” as BPI. The Commission highlightes how the companion case “has been exhaustively briefed by the Commission and two amici associations of attorneys.”
In its letter in response to the petition, the CIT argues a writ of mandamus should be “reserved for extraordinary situations” and suggests the circumstances “do not meet this onerous standard.” The CIT indicates “the Commission’s redactions are subject to judicial review and do not bind courts.” As a result, the CIT argues, the Commission “may not ‘dictate to the courts how to conduct the judiciary’s work.'” Furthermore, the CIT says, the petition should be dismissed because the Commission lacked standing. In particular, the CIT maintains, the Commission “cannot seek relief for third parties who have declined to join its petition.” Finally, even if the petition were to “reach the merits, the Commission has not demonstrated an entitlement to relief,” according to the CIT.
In its reply in support of its petition, the Commission maintains it “has a clear right to a writ to protect BPI that [the commission] is statutorily entrusted to safeguard.” Because “ordinary appellate channels are otherwise unavailable,” the Commission asserts, it has standing to seek relief through a writ. The Commission further argues the “CIT’s conclusion that the Commission’s practices are unlawful is erroneous.” The Commission emphasizes that “Congress granted the Commission broad authority . . . to perform its statutory functions and duties.” That authority, the Commission argues, includes “defining the information that constitutes BPI.” Additionally, the Commission contends, “Congress intended the confidential treatment of any BPI treated as such” before the Commission “to continue in subsequent judicial proceedings.” Thus, the Commission says, courts should “continue to protect information that was designated as BPI before the Commission.”
Alex Moss, court-appointed amicus curiae, submitted a combined supplemental response brief in support of affirmance in this appeal and the companion case. Moss argues the Commission is asking for the ability to “redact judicial records at its request without requiring any justification.” That approach, Moss contends, would “compel courts to violate the law, abdicate their responsibility, and deny the public access” to information the public is entitled to. Furthermore, Moss argues, to “ensure transparency, accountability, and public understanding” the public must be able to “meaningfully evaluate the basis for the court’s ruling.” She emphasizes the need for public access by arguing that, “[i]n a democracy, citizens must be able to observe how courts interpret and apply the law.” Furthermore, Moss suggests, the public’s interest is “especially compelling” to evaluate the Commission’s “true scope and impact of its designation practices.”
In its reply to the amicus curiae brief, the Commission argues “the court’s actions have upended Congress’s carefully crafted framework” by challenging the Commission’s “long-standing approach to collecting and protecting BPI.” The Commission acknowledges “there is a common law right of access to judicial proceedings.” The Commission suggests, however, that “Congress may supersede this common law right by statute and has done so here.” The statute, the Commission argues, “demonstrates Congressional intent that the common law right of access” applies to “judicial proceedings” but not to “materials in Commission proceedings.”
Oral argument is scheduled to be heard on Tuesday, November 4, 2025 at 10:00 a.m. in Courtroom 203.