J. Gregory Sidak v. United States International Trade Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2024 Decided April 24, 2026
No. 23-5149
J. GREGORY SIDAK,
APPELLEE
v.
UNITED STATES INTERNATIONAL TRADE COMMISSION, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-00325)
Joshua M. Salzman, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, at the time the briefs were filed, and Anna M.
Stapleton, Attorney.
Christopher Landau argued the cause and filed the brief
for appellee. Paul D. Clement and Andrew C. Lawrence
entered appearances.
Before: KATSAS, RAO, and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.

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WALKER, Circuit Judge: The International Trade
Commission unconstitutionally installed an administrative law
judge. In an agency adjudication, he issued an order to protect
trade secrets. The order covered an expert witness named
Gregory Sidak. Years later, the ITC investigated Sidak for
violating the protective order.
Sidak sued to enjoin the investigation. He argued that an
unconstitutionally installed ALJ lacks the authority to issue a
binding protective order. In response, the ITC argued that
Sidak’s suit was too early — and also too late.
The district court disagreed and enjoined the investigation.
We affirm.
I. How We Got To Now
The Tariff Act of 1930 prohibits importers from engaging
in unfair methods of competition and intellectual-property
infringement. See 19 U.S.C. § 1337(a). The Act is enforced
by the International Trade Commission. The ITC is a multi-
member agency consisting of a chairman and five other
commissioners. The six commissioners constitute the ITC’s
“Head.” See Free Enterprise Fund v. PCAOB, 561 U.S. 477,
512-13 (2010).
Beneath the commissioners sit administrative law judges.
They review evidence and adjudicate violations of the Tariff
Act, which can be appealed to the ITC. See 19 U.S.C. § 1335;
19 C.F.R. §§ 210.3, 210.10(b)(2)-(3), 210.42(a)(1)(i) & (h),
210.45. In doing so, the ALJs can issue orders to protect
“confidential business information.” See 19 U.S.C. § 1335
(general rulemaking authority); id. § 1337(n)(1)

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(confidentiality protections); 19 C.F.R. § 210.34(a)
(implementing regulations); Summary of Commission Practice
Relating to Administrative Protective Orders, 89 Fed. Reg.
104562 (Dec. 23, 2024).
The process for remedying violations of a protective order
depends on whether the initial proceeding before the ALJ is
open or closed. If open, the ALJ can enforce the protective
order. 19 C.F.R. § 210.25(b). If closed, the ITC can enforce
it. Id. § 210.25(c).
In the latter instance, the ITC first opens an investigation.
89 Fed. Reg. at 104564; An Introduction to Administrative
Protective Order Practice in Import Injury Investigations, U.S.
Int’l Trade Comm’n, at 11-12 (Jan. 2022),
https://perma.cc/8LX8-TU38. Then, it determines whether a
violation occurred and (if so) how to penalize it. See 89 Fed.
Reg. at 104564. The possible penalties include (1) an official
reprimand, (2) disqualification from a pending investigation,
(3) disqualification from all practice before the ITC,
(4) referral to a licensing authority, and (5) adverse inferences
against the breaching party. See 19 C.F.R. § 210.34(c)(3).
A. The ITC’s ALJs
For many decades, the ITC’s chairman unilaterally
appointed the agency’s ALJs without the votes of other
commissioners. But in 2018, the Supreme Court held
unconstitutional the appointments of ALJs in the Securities and
Exchange Commission selected by that agency’s staff. Lucia
v. SEC, 585 U.S. 237, 251-52 (2018). As the Court indicated,
ALJs are “inferior Officers,” which the Constitution’s
Appointments Clause requires be appointed by the President,
the courts, or the “Head” of the “Department,” id. at 244, 251;
U.S. Const. art. II, § 2, cl. 2. At the ITC, this means the

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commissioners acting collectively, not the chairman acting
alone.
In anticipation of Lucia, the ITC ratified the chairman’s
prior appointments of ALJs. But it did not ratify the past
actions of those ALJs. JA 227.
This case concerns one of those unratified actions.
B. Expert Witness Gregory Sidak
In 2017, shortly before the ITC ratified the chairman’s past
appointments, an ALJ issued a protective order in a dispute
between Qualcomm and Apple. The order required recipients
of confidential business information to return or destroy that
information when the case ended. Gregory Sidak testified in
that case as an expert witness, and he agreed to abide by the
ALJ’s protective order.
Years after the Qualcomm-Apple case closed, the ITC
suspected that Sidak had not complied with the protective
order’s document-destruction requirements. So the ITC
opened an investigation.
For nine months, the ITC and Sidak exchanged several
letters regarding a possible protective-order breach. The ITC
directed Sidak to submit sworn affidavits addressing
responsibility for the alleged breach and potential sanctions.
Sidak’s attorney responded with a letter disputing liability on
legal grounds. The ITC then issued a second letter
incorporating its prior instructions, requesting an affidavit, and
warning that a failure to provide it could lead the ITC to assume
facts adverse to Sidak’s interests. Sidak responded to that letter
with an affidavit and a second attorney’s letter. When the ITC
sent a third letter requiring yet more information, Sidak sued.

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In his lawsuit, Sidak argued that the protective order was
void because the ALJ had not been properly appointed and the
order had not been later ratified by the ITC. He asked the
district court to hold the protective order unenforceable and
enjoin the ITC from imposing sanctions based on it.1
The district court permanently enjoined the ITC from
using the protective order as the basis for an investigation or
sanctions against Sidak.
The ITC appealed.
II. Three Thresholds
Sidak has standing, the district court had jurisdiction, and
the Constitution provides a right of action.
First, Sidak has Article III standing — which the ITC does
not dispute. He faces a credible risk of professional sanctions
arising from the ITC’s investigation, which suffices to establish
injury in fact. See Susan B. Anthony List v. Driehaus, 573 U.S.
149, 158-61 (2014) (holding that plaintiffs may establish injury
where a “credible threat of enforcement” exists). That injury
is traceable to the ITC’s reliance on the challenged ALJ order,
and an injunction would redress it by halting the investigation
and barring sanctions based on the order.
1 In neither the district court nor this court does the ITC dispute that
the ALJ had been improperly appointed when he issued the relevant
protective order, that the order has not been subsequently ratified,
and that the ITC was investigating only Sidak’s possible violation of
the protective order, not his agreement to abide by the protective
order.

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In addition, the ITC has required Sidak to submit affidavits
and warned that an incomplete response could lead to adverse
inferences. Compliance with those demands costs time and
money — a concrete injury redressable by an injunction
against the investigation. See Abbott Laboratories v. Gardner,
387 U.S. 136, 152-54 (1967) (finding standing where agency
action required “immediate and significant change in the
plaintiffs’ conduct of their affairs with serious penalties
attached to noncompliance”).
Second, the district court had subject-matter jurisdiction.
District courts have “original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. And that federal-question
jurisdiction extends to suits in equity challenging unlawful
agency actions. See American School of Magnetic Healing v.
McAnnulty, 187 U.S. 94, 107-08 (1902); see also Federal
Express Corp. v. United States Department of Commerce, 39
F.4th 756, 763 (D.C. Cir. 2022) (“Long before the APA, the
main weapon in the arsenal for attacking federal administrative
action was a suit in equity seeking injunctive relief.” (cleaned
up)).
Sidak and the ITC argue at length about how to apply Axon
Enterprise, Inc. v. FTC, 143 S. Ct. 890 (2023). There, the
FTC’s and SEC’s special statutory review schemes did not strip
district courts of federal-question jurisdiction. Id. And here
too, federal-question jurisdiction was not stripped by a special
statutory review scheme — for the simple reason that in
today’s case there is no relevant, special statutory review
scheme at all.2
2 True, the ITC designed its own procedures for certain enforcement
actions. See 19 C.F.R. § 210.25(a)(2), (c); id. § 210.34(c); 89 Fed.

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Third, Sidak has a right of action. When an injured party
seeks to enjoin an unconstitutionally structured agency acting
in violation of the Appointments Clause, the party has “an
implied private right of action directly under the Constitution.”
Free Enterprise Fund v. PCAOB, 561 U.S. 477, 491 n.2 (2010)
(cleaned up) (treating an Appointments Clause challenge no
differently than other constitutional claims); see also Axon, 143
S. Ct. at 914 (Gorsuch, J., concurring in judgment) (“And, of
course, one traditional avenue of relief is a suit in district court
under § 1331 seeking to enjoin unconstitutional conduct.”)
(citing Free Enterprise Fund, 561 U.S. at 491 n.2).3
III. All in the Timing
The ITC argues that Sidak’s suit to enjoin its investigation
is both too early and too late — too early because the ITC has
not yet made a final decision about Sidak’s compliance with
the protective order, and too late because Sidak could have
Reg. 104562, 104563-64 (Dec. 23, 2024). But a regulation cannot
divest a district court of jurisdiction. Kontrick v. Ryan, 540 U.S. 443,
452 (2004) (“Only Congress may determine a lower federal court’s
subject-matter jurisdiction.”); cf. City of Arlington v. FCC, 569 U.S.
290, 319 (2013) (Roberts, C.J., dissenting) (“it is fundamental that
an agency may not bootstrap itself into an area in which it has no
jurisdiction” (quoting Adams Fruit Co. v. Barrett, 494 U.S. 638, 650
(1990)).
3 Courts distinguish “between claims of constitutional violations and
claims that an official has acted in excess of his statutory authority.”
Dalton v. Specter, 511 U.S. 462, 472 (1994). Because Sidak argues
that the ITC’s investigation depends on the unratified order of an
unconstitutionally appointed officer, his claim is a constitutional
claim, not a statutory claim. If he were bringing a statutory claim,
he would need to bring a claim either under the Administrative
Procedure Act or for ultra vires review.

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objected to the protective order when he first testified in the
Qualcomm-Apple case.
A. Too Early?
Sidak’s suit is not too early — it is constitutionally and
prudentially ripe for review.4
As a constitutional matter, ripeness requires that a case not
be “dependent on contingent future events that may not occur
as anticipated, or indeed may not occur at all.” Trump v. New
York, 141 S. Ct. 530, 535 (2020) (cleaned up). While
constitutional ripeness is distinct from Article III standing, in
this case the two issues “boil down to the same
question,” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
157 n.5 (2014) (cleaned up) — whether “judicial resolution of
this dispute is premature,” Trump, 141 S. Ct. at 536. For the
same reasons that Sidak’s suit against the ITC’s ongoing
investigation satisfies Article III’s standing
requirements — see Part II above — Sidak’s suit satisfies
Article III’s ripeness requirements.
The ITC argues that even though Sidak has standing, his
suit is not ripe. That argument relies on the prudential-ripeness
doctrine. And though the Supreme Court has not disposed of a
case purely on prudential ripeness in many years, see Industrial
Energy Consumers of America v. FERC, 125 F.4th 1156, 1165-
66 (D.C. Cir. 2025) (Henderson, J., concurring), it has also not
overruled the two-part test for prudential ripeness that it
4 In certain places, the ITC suggests Sidak’s suit is too early not just
because it is unripe but also because Sidak failed to meet an
exhaustion requirement. But the ITC has identified no statute
requiring exhaustion. And its occasional feinting at an exhaustion
argument is insufficient to preserve any argument that one exists.

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outlined in Abbott Laboratories v. Gardner, 387 U.S. 136, 149
(1967).
Abbott Labs tells us to ask two questions: whether the case
raises legal questions or factual questions, and whether delay
of a judicial decision would impose hardships. See id.5
Under that test, Sidak’s suit is ripe. It presents “purely
legal” questions about timeliness, forfeiture, and the protective
order’s enforceability, id., and no “further factual development
would significantly advance our ability to deal with the legal
issues presented,” National Park Hospitality Association v.
Department of Interior, 538 U.S. 803, 812 (2003) (cleaned up).
In addition, Sidak faces at least some hardship from being
subjected to an enforcement proceeding that he claims is
illegitimate, and the ITC has no “institutional interests favoring
the postponement of review.” Sabre, Inc. v. Department of
Transportation, 429 F.3d 1113, 1120 (D.C. Cir. 2005); cf. id.
(when the fitness prong is met, “a petitioner need not show that
delay would impose individual hardship” unless “institutional
interests favor[] the postponement of review”).
The ITC raises three arguments in response. All fail.
5 Though this court has suggested in the past that a case may always
be ripe for review if it satisfies the first prong, the Supreme Court has
framed both prongs as necessary considerations. Compare Time
Warner Entertainment Co. v. FCC, 93 F.3d 957, 974 (D.C. Cir.
1996) (when the case raises purely legal questions, a court “need not
consider” hardship before finding the case ripe for review) with
Texas v. United States, 523 U.S. 296, 300-01 (1998) (“Ripeness
requires us to evaluate both the fitness of the issues for judicial
decision and the hardship to the parties of withholding court
consideration.” (cleaned up)); see also Flynt v. Rumsfeld, 355 F.3d
697, 702 (D.C. Cir. 2004) (quoting this standard).

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First, the ITC argues that review should wait until the
agency finishes its enforcement proceedings, which it says fall
“well within the Commission’s expertise.” But this is an
Appointments Clause challenge, not a dispute over how the
ITC conducts enforcement. We do not need to wait for the ITC
to complete the work that lies within its expertise in order to
answer the Appointments Clause question, which falls outside
its expertise — and well within our own. See Carr v. Saul, 141
S. Ct. 1352, 1360 (2021) (“agency adjudications are generally
ill suited to address structural constitutional challenges, which
usually fall outside the adjudicators’ areas of technical
expertise”).
Second, the ITC argues that immediate review is
inefficient and “might prove to have been unnecessary.” But
that is true of many cases that raise purely legal questions. And
under this court’s ripeness precedents, “neither the agency nor
the court ha[s] a significant interest in postponing review”
when “[n]o further factual development is necessary to clarify
the issue.” Electric Power Supply Association v. FERC, 391
F.3d 1255, 1263 (D.C. Cir. 2004).
Third, the ITC argues that immediate review is unavailable
because it has taken no final agency action. Finality is an
express requirement for judicial review under the
Administrative Procedure Act, 5 U.S.C. § 704, and courts often
read finality requirements into other statutory rights of
action, see Bell v. New Jersey, 461 U.S. 773, 778 (1983). But
here, Sidak relies on an implied constitutional right of action in
equity, as permitted by Free Enterprise Fund v. PCAOB, 561
U.S. 477, 491 n.2 (2010). And such rights of action have no
finality requirement. See, e.g., Trudeau v. FTC, 456 F.3d 178,
188-91 (D.C. Cir. 2006).

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B. Too Late?
Sidak’s suit is also not too late.
A challenge is timely when it complies with ordinary
procedural requirements. See Carr, 141 S. Ct. at 1362. Those
requirements can include traditional forfeiture principles and
statutory exhaustion rules, as well as laches principles or any
applicable statute of limitations. See id. (no special timeliness
rules exist for Appointments Clause claims); see also Lucia,
585 U.S. at 251 (“one who makes a timely challenge . . . is
entitled to relief” (cleaned up)). As relevant here, Sidak did not
forfeit his Appointments Clause claim.
The ITC argues that Sidak forfeited his claim by testifying
as a witness in the Qualcomm-Apple proceeding and signing
the 2017 protective order. But Sidak had no claim of injury to
bring and no forum in which to bring it until the ITC launched
its investigation against him. Even assuming that Sidak could
have raised his Appointments Clause challenge then, he did not
need to do so. That’s because “agreeing to testify is materially
different from invoking a forum and affirmatively seeking a
ruling from the Commission” — actions that may well require
an Appointments Clause challenge to be either raised or
forfeited. JA 220 (cleaned up).
That distinguishes this case from Ciena Corp. v. Oyster
Optics, LLC, 958 F.3d 1157 (Fed. Cir. 2020). It asked whether
a forum-invoking party can sandbag its opposing party by
asking unconstitutionally appointed adjudicators for a decision
and then demanding an Appointments Clause do-over if the
adjudicators’ decision is unfavorable — a classic heads-I-win-
tails-you-lose strategy. For understandable reasons, Ciena
Corp. held that a party forfeits its Appointments Clause

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challenge if it “affirmatively [seeks] a ruling from the Board
members” and is “content to have the assigned Board judges
adjudicate its invalidity challenges until the Board rule[s]
against it.” Id. at 1159.
Here, Sidak did nothing of the sort. He neither initiated
the original ITC proceeding nor sought relief from the ITC. So
he cannot credibly be accused of sandbagging.6
The ITC mentions the de facto officer doctrine, which
“confers validity upon acts performed by a person acting under
the color of official title even though it is later discovered that
the legality of that person’s appointment or election to office is
deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995).
But the Supreme Court has confined the doctrine to minor or
“technical defects in title to office,” rather than structural
constitutional violations. Id. at 180, 182-83; see also Lucia,
585 U.S. at 251-52 (granting full relief without mentioning the
de facto officer doctrine). And in any event, the doctrine
protects reliance interests when a party has already litigated
before an official of questionable status; it does not bar a non-
party from objecting when the agency first takes action against
him.
6 Moreover, while relying on Sidak’s status as a signatory to argue
that he is covered by the protective order, the ITC has consistently
maintained that the investigation to decide whether sanctions should
be imposed is based solely on the legal authority of the protective
order itself. In other words, the ITC has disclaimed any reliance on
some separate statutory or regulatory requirement for Sidak to do
something simply because he has agreed to do it.

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* * *
Our timeliness “holding is narrow.” JA 227. Like the
district court, we do “not hold that parties to administrative
proceedings can belatedly attack any adverse order based on
alleged defects in the adjudicator’s authority.” Id. The ITC’s
“timeliness and forfeiture arguments would fare much better if
Sidak were a party.” Id. But as the ITC “acknowledged at oral
argument, this ‘is an unusual case.’ Indeed, neither side could
point to a comparable one. The key features of this dispute are
that Sidak was a third-party witness in the initial proceeding,
and he had no obligation (nor opportunity) to earlier raise this
claim in federal court.” Id. (cleaned up).
IV. Remedy
The ITC also argues that the district court failed to
adequately weigh the equitable factors for permanent
injunctive relief. But it has not demonstrated that the
injunction was an abuse of the district court’s discretion.
To obtain a permanent injunction, the “plaintiff must
demonstrate: (1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388,
391 (2006). We review the district court’s grant of a permanent
injunction for abuse of discretion. Id.
The ITC could have argued that because judicial review
after final agency action is an adequate remedy, Sidak cannot
maintain any implied claim in equity, much less obtain the

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extraordinary remedy of an injunction. See, e.g., Reisman v.
Caplin, 375 U.S. 440, 443 (1964). Then, Sidak could have
responded that the ITC’s investigation is an irreparable injury,
analogizing it to the “here and now” injuries caused by the
investigations in Axon. Axon Enterprise, Inc. v. FTC, 143 S.
Ct. 890, 903 (2023). And in reply, the ITC could have tried to
distinguish Axon, where the investigations were “led by an
illegitimate decisionmaker” — unlike the investigation into
Sidak. Id.
But the ITC doesn’t make that argument on appeal.
Rather, its opening brief makes no mention of eBay’s
“irreparable injury” factor outside its recitation of eBay’s test.
Instead, the ITC argues that an injunction is not justified
by the balance of equities and “is contrary to the rights of third
parties and the public interest” — skipping past eBay’s first
and second factors and going straight to its third and fourth.
Appellant Br. 51. But the ITC made no argument about those
factors in the district court. So the ITC focuses here on what it
arguably forfeited there. And in any event, any hardship to the
ITC and the risk to “third parties and the public interest” is
belied by the message’s messenger: If the ITC’s work, third
parties, and the public interest really depend on the
enforcement of pre-Lucia protective orders, the ITC could have
tried — and still can try — to ratify past actions like the
Qualcomm-Apple protective order. That is what other
agencies did after Lucia, and it is what the Solicitor General
advised the ITC to do. See JA 202-03, 202 n.1.
Finally, in addition to its unpersuasive and possibly
unpreserved reliance on eBay’s third and fourth factors, the
ITC makes a one-fell-swoop argument. Lumping all the eBay
factors together, it says the district court did not properly
explain how it weighed them — at the end of a thorough and

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thoughtful opinion that was already 28 pages long.7 But the
court did not abuse its discretion. Rather, it amply explained
its view that an injunction was the appropriate remedy for an
Appointments Clause violation that the ITC does not even
contest. See JA 226 (“the Supreme Court has established
remedies with bite for Appointments Clause violations”
(quoting Cody v. Kijakazi, 48 F.4th 956, 960 (9th Cir. 2022));
JA 227 (“If any broader reliance interests are affected in this
case, the Commission is to blame.”). Beyond that, district
courts are not administrative agencies with a burden imposed
by the Administrative Procedure Act to explain their decisions
in a manner the reviewing court finds reasonable. On appeal,
it is the appellant’s burden to make a winning, preserved
argument that the district court erred.
The ITC has not done that in this case.
* * *
For these reasons, we affirm the judgment of the district
court.
So ordered.
7 Cf. JA 115 (ITC asserting to the district court, in a single sentence,
tucked into a footnote, that Sidak “has not established any irreparable
injury”).

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