Federal Circuit disposition — 25-127

United States Court of Appeals
for the Federal Circuit
______________________
IN RE UNITED STATES,
Petitioner
______________________
2025-127
______________________
On Petition for Writ of Mandamus to the United
States Court of International Trade in No. 1:21-cv-00219-
SAV, Judge Stephen A. Vaden.
______________________
Decided: February 2, 2026
______________________
COURTNEY S HEEHAN MC N AMARA , Office of the General
Counsel, United States International Trade Commission,
Washington, DC, argued for petitioner United States.
Also represented by M ARGARET D. M ACDONALD, KARL VON
S CHRILTZ; ELIZABETH ANNE S PECK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC.
ALEXANDRA H. M OSS, Public Interest Patent Law
Institute, La Quinta, CA, argued as amicus curiae coun-
sel.
______________________
Before D YK, TARANTO, and CHEN, Circuit Judges.
D YK, Circuit Judge.
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IN RE US 2
In a countervailing duty or antidumping investiga-
tion, the International Trade Commission (the “Commis-
sion”) issues questionnaires to parties and third parties to
collect relevant information. The Commission has adopt-
ed the practice of automatically designating questionnaire
responses as confidential without regard to whether that
information is designated confidential by the submitting
party and without regard to whether the submitted
information would be entitled to confidential treatment
under the governing statute. 19 U.S.C. §§ 1516a, 1677f.
The Court of International Trade (“CIT”) held that sec-
tion 1516a(2)(b) of the statute (providing that “the court
may examine, in camera, the confidential or privileged
material, and may disclose such material under such
terms and conditions as it may order”) does not abrogate
the common law right of access to records of judicial
proceedings and, in any event, that the Commission’s
confidentiality practices are not consistent with the
statute. The Commission petitions this court for a writ of
mandamus primarily 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.
We conclude that a writ of mandamus is unavailable
but treat the Commission’s petition as a notice of appeal
and find the appeal proper under the collateral order
doctrine. On the merits, we conclude that section 1516a
does not abrogate the common law right of access; that
the Commission’s practice of designating all questionnaire
responses as confidential is incompatible with the statute;
and that the CIT’s order directing the Commission on
remand to proceed in accordance with the statute is not
contrary to the law. Accordingly, we affirm.
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IN RE US 3
BACKGROUND
I
Congress created the Commission as an independent
agency in 1916 to conduct investigations in international
trade matters.1 In its early years, the Commission acted
primarily in an advisory capacity to Congress and the
President. In 1919, the Commission published a report on
dumping—the sale of imported merchandise to the United
States for less than its fair value—and recommended that
Congress enact legislation to combat that practice. The
Commission’s report helped spur the Antidumping Act of
1921, which authorized the Secretary of the Treasury to
determine whether dumping was taking place and wheth-
er it was likely to injure an industry in the United States.
Antidumping Act of 1921, Pub. L. No. 67-10, § 201,
42 Stat. 9, 11. If the Secretary made such findings, the
statute provided for the imposition of special duties on
dumped merchandise. Id. § 202, 42 Stat. at 11–12. An
appeal was available to the United States Court of Cus-
toms Appeals. Id. § 210, 42 Stat. at 15.
The Commission’s involvement in such proceedings as
an adjudicatory body began in 1954, when Congress
amended the Antidumping Act and charged the Commis-
sion with making material injury determinations after a
finding of dumping by the Secretary of the Treasury.
Customs Simplification Act of 1954, Pub. L. No. 83-768,
§ 301, 68 Stat. 1136, 1138. In 1974, Congress required
that Treasury also impose countervailing duties (the type
1 The history described here is supported by Will E.
Leonard & F. David Foster, The Substantive and Institu-
tional Evolution of the U.S. Tariff Commission/U.S.
International Trade Commission (1917–2016), in A
CENTENNIAL H ISTORY OF THE U NITED S TATES
INTERNATIONAL TRADE COMMISSION 121, 122–41 (2017).
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IN RE US 4
of duties involved here) on subsidized imports that could
materially injure an industry in the United States. Trade
Act of 1974, Pub. L. No. 93-618, § 331, 88 Stat. 1978,
2049–50. Congress again tasked the Commission with
making the necessary injury determinations. Id. The
Secretary of the Treasury’s functions were transferred to
the Secretary of Commerce in 1979. Reorganization Plan
No. 3 of 1979, § 5(a), 93 Stat. 1381, 1383. Congress sub-
sequently revised the antidumping and countervailing
duty statutes and established the modern investigation
structure. Trade Agreements Act of 1979, Pub. L. No. 96-
39, § 106, 93 Stat. 144, 193.
Under current law, an antidumping or countervailing
duty investigation is initiated when an interested party
files a petition with the Secretary of Commerce and the
Commission on behalf of an industry. 19 U.S.C.
§§ 1671a(a), (b)(1)–(2), 1673a(a)(1), (b)(1)–(2); see also
19 U.S.C. § 1677(9). If Commerce determines an investi-
gation is warranted, Commerce will initiate a full-fledged
investigation. 19 U.S.C. §§ 1671a(c)(2), 1673a(c)(2). At
the same time, the Commission investigates “whether
there is a reasonable indication” that such practice will
materially injure, or threaten to materially injure, an
industry in the United States. 19 U.S.C.
§§ 1671b(a)(1)(A), 1673b(a)(1)(A); see also 19 U.S.C.
§§ 1677(1), 1677(7)(A). To make this determination, the
Commission must consider “(I) the volume of imports of
the subject merchandise, (II) the effect of imports of that
merchandise on prices in the United States for domestic
like products, and (III) the impact of imports of such
merchandise on domestic producers of domestic like
products, but only in the context of production operations
within the United States”. 19 U.S.C. § 1677(7)(B)(i).
Then, the Secretary of Commerce makes a preliminary
and final determination whether either impermissible
subsidization or dumping is occurring. 19 U.S.C.
§§ 1671b(b), 1671d(a)(1), 1673b(b), 1673d(a)(1). The
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IN RE US 5
Commission makes a final material injury determination.
19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). Both Commerce’s
and the Commission’s final determinations are appealable
to the CIT. 19 U.S.C. § 1516a(a)(2)(B)(i)–(ii).
II
In determining whether there is material injury, the
Commission need not rely solely on information submitted
by parties but may itself collect relevant information from
the parties to the investigation and from third parties.
See 19 U.S.C. § 1333(a). The Commission is authorized to
request and copy “any document, paper, or record, perti-
nent to the subject matter under investigation, in the
possession of any person, firm, copartnership, corporation,
or association engaged in the production, importation, or
distribution of any article under investigation.” Id. One
way the Commission gathers information for antidumping
and countervailing duty investigations is through ques-
tionnaires directed to domestic producers, importers,
purchasers, and foreign producers of the covered product.
U.S. Int’l Trade Comm’n, Import Injury Questionnaires –
Frequently Asked Questions (2023), https://www.usitc.
gov/documents/import_injury_faqs_2023.pdf. The Com-
mission is also permitted to issue and enforce subpoenas
against any person, firm, copartnership, corporation, or
association with relevant information. 19 U.S.C.
§ 1333(b). Included in the information collected by the
Commission is confidential business information. Fre-
quently Asked Questions, supra; see also S. Rep. 100-71,
at 112 (1987). The Commission’s opinions rely on such
information, as does the CIT and our court in reviewing
the Commission’s decisions.
Nothing in the early legislation provided for public
disclosure of the information collected by the Commission.
The centrality of business information to the investigative
process, the need to protect confidential information, and
the importance of public access to information relied on by
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IN RE US 6
the Commission and the courts, led Congress to adopt an
approach that balances the competing interests in confi-
dentiality and public disclosure. S. Rep 100-71, at 111–
14. As we describe in detail below, the statute requires
submitters to specifically designate information sought to
be protected as confidential. 19 U.S.C. § 1677f(b)(1)(A).
The statute also specifies categories of information that
are not entitled to protected status, requires the Commis-
sion to publicly release information not properly designat-
ed as confidential, bars the Commission from releasing
information properly designated as confidential, and
leaves to the courts the decision as to what information
should be treated as confidential on appeal applying the
common law right of access. See 19 U.S.C § 1677f. The
statute also contemplates that if disclosure is ordered, the
CIT must give the Commission and the parties the oppor-
tunity to object before the information is released. Id.
III
This dispute arises from a countervailing duty inves-
tigation of phosphate fertilizers from Morocco and Russia.
On June 26, 2020, the Mosaic Company (“Mosaic”), a
domestic phosphate producer, filed a petition with Com-
merce and the ITC alleging that an industry in the United
States was being materially injured by subsidized phos-
phate 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 re-
sponses to those questionnaires should be treated as
confidential in their entirety, whether or not confidential
status was requested by the submitter. On February 16,
2021, Commerce published its final determination that
countervailable subsidies were being provided to foreign
producers and exporters of phosphate fertilizers. 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.
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IN RE US 7
On June 4, 2021, OCP S.A. (“OCP”), a Moroccan phos-
phate producer and exporter, sought review of the Com-
mission’s final injury determination with the CIT. See
19 U.S.C. § 1516a. OCP argued that the Commission’s
volume, price, impact, and causation findings were not
supported by substantial evidence. The CIT initially held
that the Commission’s injury determination was “ground-
ed . . . on an unsupported assumption that fertilizer could
be reshipped from one destination to another to meet
existing demand” that affected its volume, price, and
impact findings and remanded the case to the Commis-
sion for further proceedings. App’x 70.2 The Commission
conducted these proceedings and filed a final injury
redetermination, again subject to review by the CIT.
The remand redetermination and administrative rec-
ord contained “heavy redactions.” App’x 5. On Febru-
ary 29, 2024, the CIT ordered a hearing “[t]o gain a better
understanding of the justification for the redactions.”
App’x 71–72. Attached to that order were two tables
listing information from the record that the CIT believed
was improperly redacted. The CIT held the hearing on
March 29, 2024. No party presented fact witnesses on the
issue of confidentiality. 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.
After the hearing, the court ordered additional brief-
ing on the alleged confidential information. The Commis-
sion and two private parties—Mosaic and The J.R.
Simplot Company (“Simplot”)—filed briefs. In its brief,
the Commission reiterated its position that all infor-
mation collected through questionnaires is confidential.
2 Citations to the App’x refer to the Appendix sub-
mitted by the Commission with its petition.
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IN RE US 8
The Commission and the parties also addressed the need
for confidential treatment of items identified in the CIT’s
chart. The Commission argued that certain specific pieces
of information listed in the chart should be treated as
confidential. Mosaic objected to the disclosure of certain
listed information regarding its production and distribu-
tion networks and its export markets but expressly stated
that it did not claim confidential treatment for other
items. Simplot argued that certain listed information
regarding its warehouse locations, purchasing, and opera-
tional practices posed a competitive risk if disclosed.
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 automati-
cally treating questionnaire responses as confidential was
not authorized by law, and concluded that the Commis-
sion improperly redacted the public record based on
erroneous confidentiality designations that “meet[] nei-
ther the statutory nor regulatory standards,” App’x 11,
including by designating publicly available information,
general characterizations not revealing the specific opera-
tions of any company, or stale information as confidential.
As for the specific information identified in the confi-
dentiality hearing, the CIT concluded that only one piece
of information was entitled to confidential treatment. The
bulk of the information was not confidential because it
was publicly available, generalized, or stale and outdated
and thus unlikely to cause competitive harm. The CIT
permitted information that identifies the number of
Mosaic’s customer-owned warehouses and other space
arrangements to remain confidential because “Mosaic has
guarded the types of space arrangements it has with its
customers from public view and release of that infor-
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IN RE US 9
mation would give Mosaic’s competitors insight into its
private contracts with customers.” App’x 47.
The CIT also ordered the Commission “[i]n further
proceedings in the underlying case” to:
1) Treat as public the information identified in Sec-
tion IV of this opinion as not entitled to confiden-
tial 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.
Id. at 48.
We read this as ordering the Commission to eliminate
improper confidential treatment in future filings with the
CIT in this case and to require the Commission in future
remand proceedings in this case to conform to the CIT’s
determination as to the confidential status of particular
material. We do not read the order as directing the
Commission to treat as public particular information in
the record of the Commission’s own proceedings other
than the information specifically referenced in the Confi-
dentiality Opinion and Order.
On April 7, 2025, the Commission filed a petition for a
writ of mandamus with this court primarily requesting
that we compel the CIT to retain the confidentiality of
questionnaire responses and to permit the Commission to
continue its practice of automatically designating ques-
tionnaire responses as confidential and treating material
as confidential based on specific claims of confidentiality.
It argued that sections 1516a and 1677f of the statute
give the Commission broad authority to designate infor-
mation as confidential and that the Commission’s practice
of automatically designating questionnaire responses as
confidential is permitted by the statute.
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IN RE US 10
On April 22, 2025, the CIT issued a second merits
opinion and order under seal, finding that “the Commis-
sion’s [merits] determination on reshipment remains
unsupported by substantial evidence” and that “the
Commission has not adequately supported certain find-
ings regarding its volume and price effects analyses.”
Confidential Order at 17, OCP S.A. v. United States,
No. 1:21-cv-219 (Ct. Int’l Trade Apr. 22, 2025), Dkt.
No. 224 (sealed). The CIT reiterated in its Order that
“[o]n remand, unless directed otherwise by the Federal
Circuit, the Commission must (1) comply with [the Confi-
dentiality 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.” App’x 79.
The Commission did not file a new mandamus peti-
tion or appeal based on the confidentiality aspects of the
April 22 merits opinion and order. Nor did any other
party seek review of that opinion and order on those
grounds. However, on April 29, 2025, in its reply brief in
support of its petition for a writ of mandamus, the Com-
mission asked this court to order the CIT to issue a public
version of its second merits opinion with redactions of
information believed by the Commission to be confiden-
tial. We denied the government’s motion without preju-
dice to renew its request after first asking the CIT for
relief. On June 20, 2025, the Commission filed an unop-
posed motion asking the CIT to publish its merits opinion
with redactions. The Commission primarily supported its
proposed redactions on the ground that the information
originated in questionnaire responses. The CIT offered
the parties an opportunity to submit responses to the
Commission’s motion, but no party responded in either
support or opposition.
On July 3, 2025, the CIT denied the Commission’s
motion and rejected the requested redactions, concluding
that the Commission “fail[ed] to allege any specific, con-
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IN RE US 11
crete harm that would arise should the Court not make
the requested redactions.” Op. at 26, OCP S.A., No. 21-cv-
219 (Ct. Int’l Trade July 3, 2025), Dkt. No. 233. Never-
theless, 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.” Id. Again, the Com-
mission did not file a new petition or appeal challenging
the CIT’s decision rejecting its requested redactions. Nor
did any other party. We now consider the government’s
petition for a writ of mandamus.3
D ISCUSSION
We first consider what issues are properly before us.
The CIT issued three relevant opinions and orders in this
case: the Confidentiality Opinion and Order, the second
merits opinion, and the order rejecting the Commission’s
requested redactions in the public version of the second
merits opinion. The Commission’s petition for a writ of
mandamus only addressed the Confidentiality Opinion
3 This case was consolidated with an appeal of a
CIT decision related to antidumping duty orders on
mattresses from Cambodia, Indonesia, Malaysia, Serbia,
Thailand, Turkey, and Vietnam, as well as a countervail-
ing duty order on mattresses from China, docketed as
No. 2024-1566. We appointed two Amici to argue on
behalf of the CIT in the two cases. Andrew J. Dhuey
submitted a brief discussing the mattress case. Alexan-
dra H. Moss submitted a brief discussing both cases. We
thank Mr. Dhuey and Ms. Moss for their briefing and
argument supporting the CIT’s actions. The CIT also
submitted a letter in response to the Commission’s peti-
tion. The Customs and International Trade Bar Associa-
tion and International Trade Commission Trial Lawyers
Association submitted amicus briefs supporting in part
the Commission’s position.
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IN RE US 12
and Order. The Commission did not file a new petition or
appeal the CIT’s subsequent opinions and orders even
though a challenge to such opinions and orders is men-
tioned in the Commission’s mandamus reply brief. As
such, our review is limited to the Confidentiality Opinion
and Order.
In considering the Confidentiality Opinion and Order,
this case requires us to decide three principal issues: first,
whether we have jurisdiction and whether the Commis-
sion has standing; second, whether the relevant statutes
abrogate the common law right of access to judicial pro-
ceedings; and third, whether the CIT’s order concerning
future proceedings and confidentiality designations is
consistent with the statute.
I
Pursuant to the All Writs Act, this court has the au-
thority to issue a writ of mandamus as “necessary or
appropriate in aid of” our jurisdiction. 28 U.S.C.
§ 1651(a). “A party seeking a writ bears the burden of
proving ‘that its right to issuance of the writ is clear and
indisputable, . . . and that it lacks adequate alternative
means to obtain the relief sought.’” In re MSTG, Inc.,
675 F.3d 1337, 1341 (Fed. Cir. 2012) (quoting In re Spal-
ding Sports Worldwide, Inc., 203 F.3d 800, 804 (Fed. Cir.
2000) (omission in original)).
There is no right to mandamus where there is an ade-
quate remedy by appeal. Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380 (2004). This condition is “designed to
ensure that the writ will not be used as a substitute for
the regular appeals process.” Id. at 380–81. The Com-
mission 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.
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IN RE US 13
Here the Confidentiality Opinion and Order was in-
terlocutory, which ordinarily would not be immediately
appealable. However, the collateral order doctrine per-
mits the appeal of “trial court orders affecting rights that
will be irretrievably lost in the absence of an immediate
appeal,” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,
430–31 (1985), even though our jurisdictional statute
provides for review of “final decision[s],” 28 U.S.C.
§ 1295(a)(5). “For the collateral order doctrine to apply,
an order must meet three requirements; it must
(1) ‘conclusively determine the disputed question’;
(2) ‘resolve an important issue completely separate from
the merits of the action’; and (3) ‘be effectively unreviewa-
ble on appeal from a final judgment.’” DePuy Synthes
Prods., Inc. v. Veterinary Orthopedic Implants, Inc.,
990 F.3d 1364, 1368 (Fed. Cir. 2021) (quoting Apple Inc.
v. Samsung Elecs. Co., 727 F.3d 1214, 1220 (Fed. Cir.
2013)).
The CIT’s Confidentiality Opinion and Order satisfies
all three conditions. First, the CIT conclusively interpret-
ed the relevant statutes and regulations in its opinion and
held that the Commission cannot automatically treat
questionnaire responses as confidential. It also deter-
mined that, with limited exceptions, the redacted infor-
mation did not meet the statutory or regulatory
requirements for confidential treatment and should be
filed publicly. This “conclusively determined” all disputed
issues. Id.
Second, the confidentiality issue is separate from the
merits of the countervailing duty investigation and “im-
plicates the ‘important balance between the public’s
interest in understanding judicial proceedings and the
parties’ right to access the courts without being unduly
required to disclose confidential information.’” Id. (quot-
ing Apple, 727 F.3d at 1220).
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IN RE US 14
Third, the Confidentiality Opinion and Order could
not be meaningfully reviewed after a final judgment
because the information, “once disclosed to the public,
could not be made confidential again.” Id.; see also Uniloc
2017 LLC v. Apple, Inc., 964 F.3d 1351, 1358 (Fed. Cir.
2020) (“[O]nce the parties’ confidential information is
made publicly available, it cannot be made secret again.”
(internal quotation marks and citation omitted)); In re
Copley Press, Inc., 518 F.3d 1022, 1025 (9th Cir. 2008)
(“Secrecy is a one-way street: Once information is pub-
lished, it cannot be made secret again.”). In DePuy, we
similarly held that we possessed jurisdiction to review on
appeal a district court order requiring that an amended
complaint be filed on the public record under the collat-
eral order doctrine. DePuy, 990 F.3d at 1368–69.
The CIT released its Confidentiality Opinion and Or-
der in this case on March 27, 2025. An appeal to this
court from the Confidentiality Opinion and Order was
available and timely on April 4, 2025, the date the peti-
tion was filed. We have jurisdiction over appeals from
final decisions of the CIT, including orders appealable
under the collateral order doctrine. 28 U.S.C.
§ 1295(a)(5); see IQE PLC v. Newport Fab, LLC, 155 F.4th
1370, 1376 (Fed. Cir. 2025) (“Our appellate jurisdiction is
typically limited to ‘a final decision of a district court.’
28 U.S.C. § 1295(a) . . . . But ‘[t]he collateral order doc-
trine is a narrow exception to the usual rule of finality.’”
(quoting DePuy, 990 F.3d at 1368) (alteration in original));
see also Viraj Grp. v. United States, 343 F.3d 1371, 1376
(Fed. Cir. 2003) (analyzing the collateral order doctrine in
the context of the CIT).
Under these circumstances, where a collateral order
appeal is available, we conclude 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, Fed. R. App.
P. 4(a)(1)(B), and it contains all the information required
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IN RE US 15
by Rule 3(c)(1). See In re Bethesda Mem’l Hosp., Inc.,
123 F.3d 1407, 1408–09 (11th Cir. 1997) (collecting cases
and finding “precedent permits us to treat the petition for
the writ of mandamus as a direct appeal”); In re Uro-
health Sys., Inc., 252 F.3d 504, 507 (1st Cir. 2001) (collect-
ing cases and concluding it was appropriate to treat a
mandamus petition as an appeal); Madej v. Briley,
371 F.3d 898, 899 (7th Cir. 2004) (treating a petition as a
notice of appeal because the district court entered an
appealable order and the petition contained the infor-
mation required by Fed. R. App. P. 3); see also United
States v. Aldawsari, 683 F.3d 660, 662 (5th Cir. 2012)
(directing the district court to docket the petition as a
notice of appeal because an interlocutory appeal was an
available remedy).
The CIT, however, suggests that the Commission
lacks standing to challenge the CIT’s order with respect to
confidentiality. We disagree. 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. See In re United States, 669 F.3d
1333, 1336–37 (Fed. Cir. 2012) (concluding the govern-
ment had standing to challenge decision on confidentiality
of taxpayer information because the “tax system hinges
on the willingness of taxpayers to provide such infor-
mation”).
II
Turning to the merits, we first consider whether the
statute abrogates the common law right of access.
The Supreme Court has recognized “a general right to
inspect and copy public records and documents, including
judicial records and documents.” Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978); accord DePuy,
990 F.3d at 1369; Uniloc, 964 F.3d at 1358; In re Violation
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IN RE US 16
of Rule 28(D), 635 F.3d 1352, 1356 (Fed. Cir. 2011); see
also Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 417
(5th Cir. 2021) (“Judicial records belong to the American
people; they are public, not private, documents.”). “The
common-law right of public access to judicial records ‘is a
fundamental element of the rule of law, important to
maintaining the integrity and legitimacy of an independ-
ent Judicial Branch.’” In re Leopold to Unseal Certain
Elec. Surveillance Applications & Ords., 964 F.3d 1121,
1127 (D.C. Cir. 2020) (quoting MetLife, Inc. v. Fin. Stabil-
ity Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017)).
This right of access also “supports ‘the citizen’s desire to
keep a watchful eye on the workings of public agencies.’”
Uniloc, 964 F.3d at 1358 (quoting Nixon, 435 U.S. at 598).
There is a strong presumption in favor of a common law
right of access to documents filed in court proceedings.
See Nixon, 435 U.S. at 597–99; DePuy, 990 F.3d at 1369;
In re Violation of Rule 28(D), 635 F.3d at 1356–57.
Despite the strong presumption in favor of access, this
common law right is not absolute. Nixon, 435 U.S. at 598.
In Nixon, the Supreme Court recognized that courts may
deny access to business information where disclosure
“might harm a litigant’s competitive standing.” Id. (citing
Schmedding v. May, 85 Mich. 1, 5–6 (1891); Flexmir, Inc.
v. Herman, 40 A.2d 799, 800 (N.J. Ch. 1945)). Similarly,
we have stated that “a party’s ‘proprietary interest in
information sometimes overcomes the interest of the
public in accessing the information,’” when there is “some
threatened harm to ‘a litigant’s competitive standing’ to
justify sealing business information contained in a judi-
cial record.” DePuy, 990 F.3d at 1370, 1372 (quoting
Romero v. Drummond Co., 480 F.3d 1234, 1246 (11th Cir.
2007)).
The Commission argues that section 1516a(b)(2)(B) of
the statute abrogates the common law right of access. We
disagree. That section provides:
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The confidential or privileged status accorded to
any documents, comments, or information shall be
preserved in any action under this section. Not-
withstanding the preceding sentence, the court
may examine, in camera, the confidential or privi-
leged material, and may disclose such material
under such terms and conditions as it may order.
19 U.S.C. § 1516a(b)(2)(B) (emphasis added).
“[W]hen a statute covers an issue previously governed
by the common law [here the common law right of access],
we must presume that Congress intended to retain the
substance of the common law.” Kirtsaeng v. John Wiley &
Sons, Inc., 568 U.S. 519, 538 (2013) (internal quotation
marks and citations omitted) (alteration in original). “In
order to abrogate a common-law principle, the statute
must ‘speak directly’ to the question addressed by the
common law.” United States v. Texas, 507 U.S. 529, 534,
(1993) (quoting Mobil Oil Corp. v. Higginbotham, 436
U.S. 618 (1978)).
Here, the statutory text, which is the surest evidence
of Congressional intent, does not provide the necessary
clarity to abrogate the common law. Nat’l Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 544 (2012). The Commis-
sion argues that this provision requires that the CIT
maintain the confidential status the Commission affords
to documents and bars disclosure except under a protec-
tive order. This is not an accurate description of the
statute. Section 1516a(b)(2)(B) explicitly states that
“[n]otwithstanding” the Commission’s affording of confi-
dential treatment, the CIT may disclose materials “under
such terms and conditions as it may order.” Id. Contrary
to the Commission’s argument, the statute provides that
the CIT is not bound by the Commission’s confidentiality
designations.
The Commission contends that even if the statutory
language is broad, the legislative history clarifies that
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section 1516a(b)(2)(B) permits disclosure only under the
terms of a protective order. The plain language of the
statute cannot be contravened by the legislative history
here. See United States v. Ron Pair Enters., Inc., 489 U.S.
235, 241–42 (1989). And the legislative history in any
event does not support the Commission’s view. The
Commission purports to find support in a sentence in the
Senate report accompanying section 1516a, which states
“[s]pecial provision would be made in subsection (b)(2)(B)
for preserving the confidential or privileged status of any
materials contained in this record, including, where the
court determines it would be appropriate, the disclosure of
the privileged or confidential materials only under the
terms of a protective order.” S. Rep. No. 96-249, at 248.
This reliance is misplaced. The Senate report’s “includ-
ing” language simply emphasizes that disclosure under a
protective order is one mechanism that the CIT may
adopt to protect confidential information. It does not
suggest the CIT is barred from requiring the public dis-
closure of information when the CIT determines it is
appropriate.4
Failing to find support in the statutory language, the
Commission argues that section 1516a is comparable to
the Bankruptcy Code which has been held to override the
common law right of access. Section 107 of the Bankrupt-
cy Code provides that papers filed in the dockets of a
bankruptcy court are “public records and open to exami-
nation,” 11 U.S.C. § 107, but section 107(b) limits access
4 The CIT noted in its Confidentiality Opinion and
Order that the Commission’s practice also runs afoul of
U.S. Ct. Int’l Trade R. 5(g), which requires parties sub-
mitting papers containing confidential information to
identify that information by enclosing it in brackets. We
need not determine the import of this rule in view of our
interpretation of the statute.
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IN RE US 19
to this information, stating: “On request of a party in
interest, the bankruptcy court shall . . . (1) protect an
entity with respect to a trade secret or confidential re-
search, development, or commercial information; or
(2) protect a person with respect to scandalous or defama-
tory matter contained in a paper filed in a case under this
title.”
The Third Circuit bankruptcy case on which the
Commission relies itself makes clear that the language of
the bankruptcy code is materially different from the
language of section 1516a. In In re ESML Holdings Inc,
135 F.4th 80 (3d Cir. 2025), the Third Circuit concluded
that section 107(b) displaces the common law. 135 F.4th
at 96–97. Under Third Circuit precedent as to the com-
mon law right of access, a party would need to show “not
only a protected category of information—which would
include trade secrets or other confidential commercial
information—but also that the disclosure of this infor-
mation ‘will work a clearly defined and serious injury to
the party seeking closure.’” Id. at 96 (quoting In re Avan-
dia Mktg., Sales Pracs. & Prods. Liab. Litig., 924 F.3d
662, 672 (3d Cir. 2019)). The common law doctrine “per-
mits courts to exercise their discretion by weighing
whether ‘the [proponent’s] interest in secrecy outweighs
the presumption [of public access].’” Id. (alterations in
original) (quoting Bank of Am. Nat. Tr. & Sav. Ass’n
v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir.
1986). But the Bankruptcy Code requires sealing any
“trade secret or confidential research, development, or
commercial information” upon the request of a party and
uses the mandatory term “shall,” “meaning the bankrupt-
cy court lacks discretion to decline to protect covered
information.” Id. Because the bankruptcy code left no
discretion to the court to disclose relevant information,
the Third Circuit held that it abrogated the common law
right of access.
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Similarly, in In re Orion Pictures Corp., 21 F.3d 24 (2d
Cir. 1994), the Second Circuit concluded that sec-
tion 107(b) abrogates the common law right of access
because “if the information fits any of the specified cate-
gories, the court is required to protect a requesting inter-
ested party and has no discretion to deny the application.”
21 F.3d at 27 (emphasis omitted). This is contrary to the
Second Circuit’s understanding of the common law where
ordinarily “a judge must carefully and skeptically review
sealing requests to [e]nsure that there really is an ex-
traordinary circumstance or compelling need.” Id.
Unlike section 107(b), section 1516a(b)(2)(B) does not
specify any information that warrants blanket confidenti-
ality protection and recognizes the CIT’s authority to
determine what information should be disclosed and the
terms under which disclosure should occur. Instead of
displacing the court’s common-law discretion, sec-
tion 1516a affirms that the court “may examine” and
“may disclose” confidential material. 19 U.S.C.
§ 1516a(b)(2)(B). As such, we find no support for the
Commission’s argument based on the bankruptcy statute
cases, and we conclude that section 1516a preserves the
common law right of access.
III
The Commission nonetheless argues that even if sec-
tion 1516a itself does not restrict the court’s ability to
disclose information designated as confidential, sec-
tion 1677f restricts the Commission and these same
restrictions should apply to the CIT. But those statutory
provisions are directed to the Commission, not the CIT,
which is governed by a separate provision, section 1516a.
In this respect, section 1677f is similar to the Dodd-Frank
Act provision at issue in Metlife, Inc. v. Fin. Stability
Oversight Council, 865 F.3d 661 (D.C. Cir. 2017). The
statute in MetLife stated, “[t]he Council, the Office of
Financial Research, and the other member agencies shall
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IN RE US 21
maintain the confidentiality of any data, information, and
reports submitted under this subchapter.” Metlife,
865 F.3d at 669 (alteration in original) (quoting 12 U.S.C.
§ 5322(d)(5)(A)). Notably, that provision did not mention
the courts. Id. The D.C. Circuit concluded that the
statute did not abrogate the common law right of access
because it was reasonable to assume “Congress would not
have overturned the longstanding presumption favoring
judicial transparency by a provision that mentions execu-
tive agencies but not the judiciary.” Id. So too here,
Congress did not displace the common law right of access
applicable to the CIT in a statute that applies only to the
Commission.
Not 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.
First, the Commission’s practice of automatically des-
ignating all questionnaire responses as confidential is not
authorized by the statute. To the contrary, the statute
requires the public disclosure of “any information submit-
ted in connection with a proceeding which is not designat-
ed as proprietary by the person submitting it.” 19 U.S.C.
§ 1677f(a)(4)(B). When the Commission treats the entire-
ty of the questionnaire responses as confidential (without
a request by the party submitting it), it does not fulfill its
obligation to release non-confidential information. The
Commission’s practice of designating the responses to
questionnaires as confidential, without regard to confi-
dentiality markings, cannot override the applicable stat-
ute.
Despite the clarity of the statutory language, the
Commission argues that its automatic confidentiality
designations are supported by section 201.6(a)(1) of its
regulations, which permits the nondisclosure of infor-
mation which “is likely to . . . impair[] the Commission’s
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IN RE US 22
ability to obtain such information as is necessary to
perform its statutory functions.” 19 C.F.R. § 201.6(a)(1),
(g). According to the Commission, disclosure of any part
of questionnaire responses is likely to impair its ability to
obtain information. This concern is not supported by any
evidence. 5 The Commission has mechanisms to force
parties to respond to its questionnaires. Section 1333(a)
permits the Commission to issue and enforce subpoenas
“[f]or the purposes of carrying out its functions and duties
in connection with any investigation authorized by law.”
19 U.S.C. § 1333(a). In fact, its questionnaires note on
the first page: “This report is mandatory and failure to
reply as directed can result in a subpoena or other order
to compel.” See, e.g., U.S. Int’l Trade Comm’n, U.S.
Producers’ Questionnaire (2024), available at
https://www.usitc.gov/documents/us_produce
rs_questionnaire-original.pdf.
Second, the submitter’s request that material be
treated as confidential is not determinative. The statute
prohibits the Commission from disclosing “information
submitted to the administering authority or the Commis-
sion which is designated as proprietary by the person
submitting the information . . . without the consent of the
5 It is notable that the International Trade Court
Trial Lawyers Association (“ITC TLA”), which submitted
an amicus brief in support of the Commission, took “no
position on whether the information at issue . . . was, in
fact confidential.” Brief for ITC TLA as Amicus Curiae
Supporting the Commission at 5, In Re United States,
No. 24-1566 (Fed. Cir. Oct. 9, 2025). It sought only to
“make known its position that information designated as
confidential by a producing party to any action before the
ITC cannot later be made public sua sponte by an adjudi-
cative officer without following the process to receive and
consider input from the producing party.” Id.
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IN RE US 23
person submitting the information.” 19 U.S.C.
§ 1677f(b)(1)(A). However, 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. The legislative history of section 1677f of the
statute confirms that only information “properly desig-
nated as confidential by the person submitting it shall not
be disclosed.” S. Rep. 96-249, at 99 (emphasis added).
Third, certain categories of information are not enti-
tled to confidential treatment. Section 1677f only protects
“proprietary” information, which is information in which
the owner has a protectable interest. See Proprietary,
BLACK’S LAW DICTIONARY (6th ed. 1990). Any designation
of information “availabl[e] from public sources” as propri-
etary is improper. 19 U.S.C. § 1677f(b)(2).6 The statute
6 Significantly, each blank questionnaire includes a
section called “Confidentiality,” which reiterates the law:
The commercial and financial data fur-
nished in response to this questionnaire
that reveal the individual operations of
your firm will be treated as confidential by
the Commission to the extent that such
data are not otherwise available to the
public and will not be disclosed except as
may be required by law (see 19 U.S.C.
§ 1677f). Such confidential information
will not be published in a manner that will
reveal the individual operations of your
firm; however, general characterizations
of numerical business proprietary infor-
mation (such as discussion of trends) will
be treated as confidential business infor-
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IN RE US 24
provides for the disclosure of “any proprietary information
received in the course of a proceeding if it is disclosed in a
form which cannot be associated with, or otherwise be
used to identify, operations of a particular person.”
19 U.S.C. § 1677f(a)(4)(a). The owner of stale information
does not have a proprietary interest in it, and the Com-
mission’s own regulations (19 C.F.R. § 201.6(a)) define
“[c]onfidential business information” as “infor-
mation . . . causing substantial harm to the competitive
position of the person, firm, partnership, corporation, or
other organization from which the information was ob-
tained.” 7 In other words, outdated information is not
entitled to confidential treatment unless disclosure of the
information would cause substantial competitive harm.
Stale information typically will not cause substantial
competitive injury.
The Commission alternatively argues that the only
remedy for improperly designated information is the
return of such information at the time of submission. 8
mation only at the request of the submit-
ter for good cause shown.
See U.S. Producers’ Questionnaire, supra.
7 Confidential information is also information “the
disclosure of which is likely to . . . impair[] the Commis-
sion’s ability to obtain such information as is necessary to
perform its statutory functions” (a consideration not
satisfied here). See 19 C.F.R. § 201.6(a).
8 Pursuant to 19 U.S.C. § 1335, which authorizes
the Commission to “adopt such reasonable procedures and
rules and regulations as it deems necessary to carry out
its functions and duties,” the Commission has promulgat-
ed regulations governing the collection and designation of
confidential business information. Section 201.6(b) sets
out the procedure for requesting confidential treatment
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IN RE US 25
This is incorrect. The statute, which permits the return of
improperly designated information, see 19 U.S.C. §
1677f(b)(2), does not provide that this is an exclusive
remedy. Rather, it requires information not properly
designated as confidential be published, see 19 U.S.C. §
1677f(a)(4)(B). Accordingly, the CIT correctly determined
that the Commission’s practice was inconsistent with the
statute.
IV
The Commission contends that the CIT’s Confidential-
ity Opinion and Order requires that the Commission
violate the law. The Confidentiality Opinion and Order
states that the Commission shall, “[i]n further proceed-
ings in the underlying case,” “[t]reat as public the infor-
mation identified in Section IV of [that] opinion as not
entitled to confidential treatment” and “abide by the
statutes and regulations governing confidential treatment
of information in filings of any kind with the Court.”
App’x 48. We have already determined that it is the
Commission’s current practice that is contrary to the
statute. This order merely recognizes the affirmative
for information from the Commission. 19 C.F.R.
§ 201.6(b). After receiving a request, the Commission’s
Secretary must approve or deny the request in writing.
19 C.F.R. § 201.6(d). To request proprietary designations,
an interested party must submit to the Commission (1) a
description of the information, (2) a justification for
treating the information as confidential, (3) a certificate
that the information is not publicly available, and (4) a
copy of the document where the information is clearly
marked with brackets. 19 C.F.R. § 201.6(b)(3). Con-
sistent with section 1677f(b)(2)(B), if the Commission
denies a request for confidential treatment, the submitter
can withdraw the tender of information within five days.
19 C.F.R. § 201.6(g).
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IN RE US 26
disclosure obligations that the statute places on the
Commission and requires that the Commission comply
with the statute in the remand proceedings and in any
other CIT review proceedings in this case.
V
The Commission additionally argues that if we reject
the blanket confidentiality rule, the Commission and the
parties should be given an opportunity to propose redac-
tions and to appeal before the information is released. We
agree that the Commission and the parties must have the
opportunity to object to the release of confidential infor-
mation before its disclosure. See 19 U.S.C. § 1677f(b)(2).
However, the CIT provided the opportunity to object and
present witnesses in this case in a confidentiality hearing.
The Commission also filed a motion asking the CIT to
redact certain information in the merits opinion. The CIT
deferred disclosure pending our decision on appeal. While
the CIT’s order denying this motion is not before us, it is
exemplary of the procedural approach that the CIT must
follow.
CONCLUSION
This case involves the reconciliation of two important
objectives that are reflected in the statute and in the
common law right of access: the need to make non-
confidential information publicly available and the need
to protect properly designated confidential information
the disclosure of which could cause substantial competi-
tive harm. The CIT struck the appropriate balance in
requiring proper confidentiality designations, prohibiting
publicly available information and generalized infor-
mation from being designated confidential, and requiring
a showing of competitive injury as to stale information.
The CIT has exercised appropriate care to ensure public
access to judicial proceedings and the protection of infor-
mation that is entitled to confidential treatment. We see
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no error in the CIT’s actions. Accordingly, we affirm the
CIT’s Confidentiality Opinion and Order.
AFFIRMED
COSTS
No costs.
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