CIT Judge Vaden Responds to US Mandamus Petition on ITC's BPI Treatment

Judge Stephen Vaden last week responded to the U.S. Court of Appeals for the Federal Circuit's invitation to respond to the International Trade Commission's petition for writ of mandamus regarding Vaden's decision finding the ITC's practice of automatically redacting questionnaire responses to be unlawful. Vaden said the ITC lacks standing to petition for mandamus review, since the information belongs to the parties taking part in the injury proceeding and not the commission, and that the petition fails on the merits (In re United States, Fed. Cir. # 25-127).

In March, Vaden said the ITC's practice in injury proceedings of automatically redacting questionnaire responses isn't in line with statute, regulation or precedent (see 2503270057). The judge said the practice unlawfully leads the commission to redact publicly-available information. Vaden also affirmed the trade court's power to redact information designated as confidential by the commission and instructed the ITC to publicly release information the court found was either not confidential or would not cause harm to the submitting party.

The ITC filed for mandamus relief earlier this month, arguing that Vaden's release of the information was contrary to the statutory scheme and would greatly harm the commission's ability to collective sensitive information from private parties going forward (see 2504070053). The commission's brief took note of a parallel case currently before the Federal Circuit, also on the commission's treatment of BPI, CVB v. U.S., in which Vaden rejected a request to redact certain information the court made public in a decision on an injury determination (see 2401090046).

Responding to an invitation by the appellate court to respond to the mandamus petition, Vaden said the ITC lacks standing to vie for mandamus relief. The judge said the commission "has no independent power to redact" the parties' questionnaire submissions, since "it may only treat information as confidential if 'the person submitting the information' requests it be redacted."

The ITC "ignores the statutory scheme in its petition and instead tries to manufacture standing by claiming that the Court is hampering its 'ability to gather candid and complete information,'" the judge said. The parties whose information is at issue have not filed for review and, in some cases, have even admitted the information at issue is not confidential, Vaden claimed. He added that there's "no need to short-circuit" the standard judicial review process, arguing that the court can hear the ITC's claims when the underlying injury case is up for appeal.

Vaden said out of respect of the Federal Circuit's review of the mandamus petition, he released his decision on the remaining claims under seal.

The judge next argued that the petition fails on the merits, first claiming that the ITC's petition "rests on its belief that no limits constrain its redaction power." The commission's process, which Vaden dubbed a "black hole," constrains "even the power of judicial review."

The judge added that "Congress never gave the Commission an unbounded, unreviewable redaction power." While the statute does say the ITC can redact information that's designated as proprietary by the submitting party, "there are limits on the Commission's ability to make these redactions," the brief said. The same statute imposes "affirmative disclosure duties" on the ITC and leaves no room for "categorical, document-based non-disclosure policies like those the Commission applies to questionnaire responses," Vaden argued.

The judge closed by arguign that the ITC's regulations "do not align with the power it claims." The commission's regulations require submitting parties to include a nonconfidential written description fo the information, a justification for a request for confidential treatment and a certification that "substantially identical information is not available to the public." These regulations go out the window when the ITC automatically redacts questionnaire responses, the judge said.