Trade Law Daily is a service of Warren Communications News.

ITC, CAFC-Appointed Amicus Scrap Over Amicus' Access to BPI in Appeal on ITC Case

The International Trade Commission and court-appointed amicus Andrew Dhuey scrapped over whether Dhuey should be given access to the business proprietary information in an appeal on the Court of International Trade's rejection of a request to redact information released in a court decision (In Re United States, Fed. Cir. # 24-1566).

Sign up for a free preview to unlock the rest of this article

Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.

The commission told the U.S. Court of Appeals for the Federal Circuit that Dhuey's request for access to the BPI cuts against the "statutory scheme that governs the limited release of" BPI and fails to show a "legitimate need for the information."

In response, Dhuey said the ITC fails to show why the CAFC should read a limitation for "interested parties" in the statute, which allows a court to disclose confidential material "as it may order." Dhuey added that the ITC failed to "specify any harm that it or third parties would suffer" were he given access to the confidential information in the case.

The appeal concerns CIT Judge Stephen Vaden's refusal to redact certain BPI in his 2023 decision on an antidumping and countervailing duty injury case. The judge found that all the information alleged to be proprietary either hadn't been properly bracketed by the ITC during the trial or was publicly available (see 2401090046).

Dhuey, a patent attorney, asked the Federal Circuit if the court would appoint him as amicus to defend Vaden's decision, seeing as none of the current parties in the case were going to (see 2501300011). The court obliged, appointing him "in support" of Vaden's decision (see 2502200017).

The amicus then sought access to the confidential decision in the case, prompting opposition from the ITC. The commission argued that Congress established a "comprehensive statutory scheme" relating to BPI that only permits limited disclosure to "interested parties" that are parties to ITC proceedings. Congress said BPI "shall not be disclosed unless it can be done so in a manner that does not reveal the individual operations of a firm or it is released under an administrative protective order" or the ITC received the parties' consent.

In this case, it's "undisputed" that Dhuey doesn't represent a party that took part in the ITC's investigation, "let alone an 'interested party' in the Commission's investigation," the brief said.

In response, Dhuey said the statute that governs the matter, 19 U.S.C. 1516a(b)(2)(B) has no such limitation for "interested parties." Nothing in the legislative history suggests that "Congress ever contemplated, much less intended to prohibit, disclosures under protective orders to court-appointed amici," the brief said. He added that a "robust rebuttal" to the ITC's claims "requires a full understanding of the record evidence that the Commission relies upon in seeking reversal of the decision under review."

The commission added that Dhuey hasn't shown any need for the information, invoking the factors the trade court would consider prior to the implementation of the statute. The factors are the litigant's need for access to the information, the need of the government in obtaining BPI from parties in future proceedings and the needs of the disclosing parties to protect information that could injure their positions in the industry from disclosure.

The ITC emphasized the second and third factors, arguing that they heavily weigh in favor of rejecting disclosure to Dhuey. Giving a party who never appeared before the commission access to this information "under the auspices of amicus curiae participation" would let "any individual or entity to seek confidential information through the same process," representing an "extraordinary departure" from the ordinary safeguards, the brief said.

In response, Dhuey said the ITC never specifies what harm it or any third parties would suffer were he to gain access to the information. While the commission refers to a "chilling effect" on future third-party questionnaire responses, it's "difficult to imagine why any of the Commission’s questionnaire respondents, past or future, would be concerned if Amicus Curiae were granted access to their confidential submissions, under a protective order," the brief said.

He added that the fact that he doesn't represent an interested party "makes the Court’s consideration of this motion easier than in trade and patent cases where the lawyer seeking access to confidential materials works for a direct competitor.”