Earlier this month, the Federal Circuit released its opinion in In re United States, a trade case we have been following because it attracted two amicus briefs. In this case, the Federal Circuit reviewed a petition by the International Trade Commission for a writ of mandamus to compel the Court of International Trade to retain the confidentiality of questionnaire responses and to permit the Commission to continue its practice of automatically designating questionnaire responses as confidential. In an opinion authored by Judge Dyk and joined by Judges Taranto and Chen, the Federal Circuit affirmed the order of the CIT. This is our summary of the Federal Circuit’s opinion.
Judge Dyk first outlined the factural and procedural backgound:
This dispute arises from a countervailing duty investigation of phosphate fertilizers from Morocco and Russia. On June 26, 2020, the Mosaic Company (‘Mosaic’), a domestic phosphate producer, filed a petition with Commerce and the ITC alleging that an industry in the United States was being materially injured by subsidized phosphate fertilizers imported from Morocco and Russia. The Commission issued questionnaires to third parties to collect relevant information for the investigation and, in accordance with past practice, determined that the responses to those questionnaires should be treated as confidential in their entirety, whether or not confidential status was requested by the submitter. . . . On April 5, 2021, the Commission published its final injury determination and it found that an industry in the United States was being materially injured by these imports.
On June 4, 2021, OCP S.A. (‘OCP’), a Moroccan phosphate producer and exporter, sought review of the Commission’s final injury determination with the CIT. . . . The CIT . . . remanded the case to the Commission for further proceedings. . . . The Commission conducted these proceedings and filed a final injury redetermination, again subject to review by the CIT. The remand redetermination and administrative record contained ‘heavy redactions.’ . . . On February 29, 2024, the CIT ordered a hearing ‘[t]o gain a better understanding of the justification for the redactions.’ . . . The Commission explained that it automatically treats information submitted through a questionnaire as confidential, unless a commissioner requests that staff make a determination on whether information was properly designated.
On March 27, 2025, the CIT issued a thorough opinion and order (the ‘Confidentiality Opinion and Order’) concluding that section 1516a of the statute does not abrogate the common law right of access and permits the CIT to release information that the CIT finds is not properly entitled to confidential treatment. The CIT determined that the Commission’s practice of automatically treating questionnaire responses as confidential was not authorized by law, and concluded that the Commission improperly redacted the public record based on erroneous confidentiality designations that ‘meet[] neither the statutory nor regulatory standards.’ . . . The CIT also ordered the Commission “[i]n further proceedings in the underlying case” to: 1) Treat as public the information identified in Section IV of this opinion as not entitled to confidential treatment; and 2) Consistent with this opinion, abide by the statutes and regulations governing confidential treatment of information in filings of any kind with the Court.
On April 7, 2025, the Commission filed a petition for a writ of mandamus . . . [to] compel the CIT to retain the confidentiality of questionnaire responses and to permit the Commission to continue its practice of automatically designating questionnaire responses as confidential and treating material as confidential based on specific claims of confidentiality. On April 22, 2025, the CIT issued a second merits opinion and order under seal, . . . [and] reiterated in its Order that ‘[o]n remand, unless directed otherwise by the Federal Circuit, the Commission must (1) comply with [the Confidentiality Opinion and Order] when determining which information deserves confidential treatment and (2) correct the public version of the record to review the wrongfully redacted information.” On June 20, 2025, the Commission filed an unopposed motion asking the CIT to publish its merits opinion with redactions. On July 3, 2025, the CIT denied the Commission’s motion and rejected the requested redactions . . . Nevertheless, the CIT agreed to ‘issue a public version of the OCP Merits Decision with the redactions temporarily included to respect the Federal Circuit’s review of the Commission’s mandamus petition. . . . Again, the Commission did not file a new petition or appeal challenging the CIT’s decision rejecting its requested redactions.
Judge Dyk began his analysis by clarifying what issues were “properly before” the court. He noted that, although the CIT had issued three relevant opinions and orders, the “Commission’s petition for a writ of mandamus only addressed the Confidentiality Opinion and Order.” Accordingly, he said, the court’s “review is limited to the Confidentiality Opinion and Order.” Judge Dyk then identified three issues to be decided: “first, whether we have jurisdiction and whether the Commission has standing; second, whether the relevant statutes abrogate the common law right of access to judicial proceedings; and third, whether the CIT’s order concerning future proceedings and confidentiality designations is consistent with the statute.”
Turning first to jurisdiction, Judge Dyk briefly explained the standard governing writs of mandamus and concluded that the “Commission has not shown that it lacked an adequate remedy on appeal with respect to the Confidentiality Opinion and Order because the Confidentiality Opinion and Order was appealable.” He nevertheless explained that “the collateral order doctrine permits the appeal of ‘trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal.'” In his view, the CIT’s Confidentiality Opinion and Order satisfies all three requirements of the doctrine: it “(1) ‘conclusively determine[d] the disputed question’; (2) ‘resolve[d] an important issue completely separate from the merits of the action’; and (3) ‘[was] effectively unreviewable on appeal from a final judgment.’” He therefore concluded that “it is appropriate to treat petitioner’s mandamus petition as a notice of appeal because petitioner filed its mandamus petition within the time limit for filing a notice of appeal . . . and it contains all the information required.” Judge Dyk then briefly addressed standing, concluding the “Commission clearly has standing to challenge the order because disclosure of properly designated confidential business information could adversely affect the ability of the Commission to collect necessary information and to perform its statutory adjudicative functions.”
On the merits, Judge Dyk “first consider[ed] whether the statute abrogates the common law right of access.” He noted that the “Supreme Court has recognized ‘a general right to inspect and copy public records and documents, including judicial records and documents’ . . . [and that] [t]here is a strong presumption in favor of a common law right of access to documents filed in court proceedings.” At the same time, he acknowledged that, “[d]espite the strong presumption in favor of access, this common law right is not absolute.”
Judge Dyk rejected the Commission’s argument that “section 1516a(b)(2)(B) of the statute abrogates the common law right of access.” To abrogate a common law principle, he explained, “the statute must ‘speak directly’ to the question addressed by the common law.” He pointed out that, “[h]ere, the statutory text, which is the surest evidence of Congressional intent, does not provide the necessary clarity to abrogate the common law.” He also rejected the Commission’s other arguments based on legislative history and comparisons to the Bankruptcy Code. Accordingly, he concluded “that section 1516a preserves the common law right of access.”
Judge Dyk next addressed the Commission’s argument that, “even if section 1516a itself does not restrict the court’s ability to disclose information designated as confidential, section 1677f restricts the Commission and these same restrictions should apply to the CIT.” He disagreed, explaining that “[n]ot only does section 1677f not apply to the CIT, but the Commission is simply mistaken as to the scope of the statutory restrictions even as applied to the Commission itself.” He offered three reasons.
First, he said, “the Commission’s practice of automatically designating all questionnaire responses as confidential is not authorized by the statute.” Although the Commission argued that “disclosure of any part of questionnaire responses is likely to impair its ability to obtain information,” Judge Dyk noted that the Commission has mechanisms to compel responses.
Second, he concluded, “the submitter’s request that material be treated as confidential is not determinative.” He explained that “the structure of the statute, which provides that not all information designated as confidential is properly designated and the recognition of the importance of public access, makes clear that only information properly designated is entitled to confidential treatment.”
Third, he continued, “certain categories of information are not entitled to confidential treatment.” He clarified that the statute “only protects ‘proprietary’ information, which is information in which the owner has a protectable interest.” He added that “[a]ny designation of information ‘availabl[e] from public sources’ as proprietary is improper.”
In response to the Commission’s contention that the “CIT’s Confidentiality Opinion and Order requires that the Commission violate the law,” Judge Dyk explained that it is the Commission’s current practice that conflicted with the statute.
Judge Dyk did agree with the Commission that, “if [the court] reject[s] the blanket confidentiality rule, the Commission and the parties should be given an opportunity to propose redactions and to appeal before the information is released.” He emphasized, however, that “the CIT provided the opportunity to object and present witnesses in this case in a confidentiality hearing,” and deferred disclosure pending appeal, an approach he described as “exemplary of the procedural approach that the CIT must follow.”
Judge Dyk ultimately concluded “[t]he CIT struck the appropriate balance” between the need to make non-confidential information publicly available and the need to protect properly designated confidential information.
As a result of his analysis, the panel “affirm[ed] the CIT’s Confidentiality Opinion and Order.”