Last week, the Federal Circuit heard oral argument in two consolidated cases 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, arguing it abused its discretion in denying the parties’ joint motion to redact information submitted to the Commission. 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 information as business proprietary information. Judges Dyk, Taranto, and Chen heard the argument. This is our argument recap.
Courtney McNamara argued on behalf of the International Trade Commission. The argument began with a question from the bench referencing “a motion by the United States to redact information” from an opinion. The judge asked whether the private parties objected to “any information that was disclosed.” McNamara answered by explaining the motion was “a joint motion.” She explained how the private parties joined the motion because the CIT disclosed “far more specific information” than expected. In particular, she noted, in the first case “most of the information” pertained to customers. Because customers “can’t be interested parties that participated in the proceedings below,” McNamara argued, the customers “had no opportunity to object.”
Another judge then turned to jurisdiction. He asked how the Federal Circuit could have jurisdiction over the first case when the parties “didn’t appeal within 60 days” of the relevant order. McNamara answered by saying “the parties initially thought” the disclosure “was an oversight of the court.” Instead of appealing, the parties filed a letter and “waited,” thinking “the court would engage with them.” A second judge joined the same line of questions, asking whether there was “any issue” presented in the first case that the court could not address in the second case if the court concluded there was not a timely appeal. McNamara suggested there were “overlapping issues,” because the “underlying issue” in both cases is “whether the court has the authority to sua sponte release information” treated as “business proprietary before the Commission.”
The panel then turned to the authority delegated to the Commission by Congress. A judge explained the statute says, “specifically, the Commission shall disclose information that’s not marked confidential.” McNamara acknowledged the language, but countered by arguing the relevant statutes “together” do not “suggest that a perfected request for confidential treatment is necessarily required.” She explained “the Commission presumptively and preemptively treats . . . questionnaires as confidential.” A judge asked how the Commission can “reconcile that practice with the statute, which contemplates, specifically, . . . confidentiality markings.” McNamara said the information in the questionnaires is “designated” as confidential “by the Commission.” A judge questioned the designation, considering the statute says the information is designated confidential “by the person submitting it.” McNamara agreed that language exists in the statute, but argued the “questionnaires are designed” as confidential “by the Commission” and these confidentiality designations are “narrowly tailored.”
Andrew J. Dhuey, a court-appointed amicus curiae representing the interests of the Court of International Trade in the first case, began by agreeing the “Commission’s appeal is timely” in the first case because the Commission is appealing from a denial of request to treat information as business proprietary information. Dhuey argued “a lot of odd things would happen” if the “clock starts running at the merits decision point.” A judge asked Dhuey if “there ought to be an opportunity for the Commission and the parties to object before the release of the information.” Dhuey responded by arguing “there was such an opportunity” when the lower court held “hearings in both cases.”
Another judge asked why the lower court shouldn’t follow the Federal Circuit’s procedure, which involves informing parties about the information the court proposes to disclose in an opinion and providing the parties “an opportunity to object before the release” of the opinion. Dhuey agreed that “that might be good practice.” He also argued, however, that it is not “an abuse of discretion not to have these kinds of procedures.”
Alex Moss, another court-appointed amicus curiae representing the interests of the Court of International Trade in both cases, began by arguing the “CIT didn’t get any redactions, so it had an open hearing.” She explained the CIT “got lots of briefs” but did not receive any “motions to seal.” She suggested that, when the CIT released its opinion, “it clearly didn’t think that any information was even close to the line” of designated information.
A judge asked, “looking forward,” what rules should apply to give a party “an opportunity to object before something becomes public.” Moss argued “it’s hard to answer that question” given how “completely the rules have been violated at every step” by the Commission. Moss explained that, if the Commission had “requests to seal at any point,” the situation would be “very different.”
A judge questioned Moss on a “policy point.” He suggested there is potential that even a little amount of “uncertainty” that designated information will be released to the public will make it “harder” for the Commission “to do its job, either to get some information or to get it in time.” Moss responded by arguing that, in Congress’s “legislative history to the 1987 amendments” to the relevant statutes, the “same arguments were made.” Congress, she continued, said the concern is “legitimate.” But, she said, it gave the Commission “subpoena powers” without the ability to designate information in the questionnaires as confidential.
We will continue monitoring these cases and report on developments.