"When Someone Loses His Livelihood as a Result of Government Action,

From last week’s opinion by Judge Stephen Vaden (U.S. Ct. of Int’l Trade) in CVB, Inc. v. U.S.:

The underlying case involves a challenge to the [U.S. International Trade] Commission’s final affirmative injury determination in its investigation of mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam. The Slip Opinion outlined numerous errors by the Commission but found the errors were ultimately harmless and sustained the Commission’s final determination. To explain what the Court characterized as the Commission’s “mathematical obfuscation and statistical chicanery[,]” the Court illustrated how responses to various questionnaires contained in the record and a chart from the Commission’s final determination showed the opposite of what the Commission claimed they did.

After the Court released its opinion [link added -EV], the Commission contacted the Court … to express concerns that the opinion revealed confidential business proprietary information….

The court went in considerable detail through various procedural and substantive reasons why the Commission’s request to conceal the confidential information was improper (read the opinion for more on this), and then offered this policy discussion:

The American tradition of public access to judicial proceedings dates back not merely to the founding, or even to the English common law, but all the way back to Ancient Rome. Legal arguments and judicial decisions are meant to be public because “American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense.” This is especially true when the courts resolve disputes to which the Government is a party, affecting the entire citizenry. Like a student taking a math test, courts are expected to show their work. The public does not and should not accept final answers to complicated questions on faith alone.

Although the Court adjudicates the Motion to Retract based on the law and the facts currently before it, this is not the first time the Commission has taken a questionable position on transparency before the Court. The Commission took a similar tact in a high-profile case involving fertilizer imports [OCP S.A.].  In a conference prior to oral argument, the Court noted that more than one hundred members of Congress had formally commented on the Commission’s decision. Despite the public interest in the case, the Commission urged the Court to hold the entire oral argument in closed session. This would bar attendance by not only the public but also all non-lawyers, including corporate officers of the parties to the case.

The Commission’s counsel urged this route because she believed business proprietary information “underline[d] all the aspects and all the disputes” in the case. The Court decided to hold a public oral argument with a confidential session at the end if necessary. The transcript of the eventual oral argument was 229 pages. The public portion comprised 192 of those pages. The opinion dispensing with the case was entirely public. Compare Audio Recording: Conference Call at 24:33–50 (Commission counsel claiming it would be impossible to conduct a public hearing on the matter), with OCP S.A., 658 F. Supp. 3d at 1297–1324 (28 reporter pages of opinion, none of which are confidential).

As with OCP, the Commission’s decision in this matter and in the related petitions regarding mattresses from China drew public attention. Multiple media outlets published reports or editorials about the antidumping petitions. Numerous local outlets reported the petitions’ potential effects on businesses. Senators on both sides of the political aisle publicly commented on the petitions and how the Commission handled them. When faced with public attention, the Commission’s reflexive action appears to be to stifle public access to the judicial review of its decisions.

Although the Commission is not an elected body, it is part of the executive branch and is accountable to the people through their elected representatives. The Commission’s actions, like the Court’s, are not merely academic. An injury finding can make goods more expensive for consumers across the nation. A finding of no injury can close factories and destroy manufacturing jobs. Companies affected by this investigation claimed the Commission’s decision could result in job losses.

When someone loses his livelihood as a result of Government action, he has a right to know how and why the Government took that action. Neither administrative agencies nor this Court can hide from scrutiny by censoring information. Citizens can only hold their Government accountable if they know what that Government is doing…. “[B]ecause ‘We the People’ are not meant to be bystanders, the default expectation is transparency — that what happens in the halls of government happens in public view.” … Though the Commission may be an “independent” agency, it is not immune to legal and democratic accountability. The Constitution governs all branches of the Government — even the administrative state….

Transparency is a touchstone of our judicial system. Only information that is truly confidential may be concealed from the public. Parties are expected to diligently follow the rules regarding confidentiality to promote public access to the judiciary, protection of confidential information, and judicial efficiency. Because the parties failed to abide by the Court’s rules and object to statements by the Court that are not confidential, the Motion to Retract is DENIED….

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