CVB, Inc. v. United States , 2024 CIT 02 ( 2024 )

Slip Op. No. 24-2
UNITED STATES COURT OF INTERNATIONAL TRADE
CVB, INC.,
Plaintiff,
v.
Before: Stephen Alexander Vaden,
UNITED STATES,
Judge
Defendant,
Court No. 1:21-cv-00288 (SAV)
and
BROOKLYN BEDDING, LLC, et al.,
Defendant-Intervenors.
OPINION
[Denying the Defendant’s Joint Motion to Retract the Court’s Public Slip Opinion
and Accord Confidential Treatment to Alleged Business Proprietary Information
Contained Therein.]
Dated: January 8, 2024
Geoffrey M. Goodale, Duane Morris, LLP, of Washington, DC, for Plaintiff CVB, Inc.
With him on the briefs were Andrew R. Sperl, Nathan J. Heeter, and Lauren E.
Wyszomierski, Duane Morris, LLP, and Stephen G. Larson, Robert C. O’Brien, and
Paul A. Rigali, Larson LLP, of Los Angeles, CA.
Jane C. Dempsey, Office of the General Counsel, United States International Trade
Commission, of Washington, DC, for Defendant United States. With her on the
briefs were Dominic Bianchi, General Counsel; Andrea C. Casson, Assistant
General Counsel for Litigation; and Brian R. Soiset, Attorney-Advisor.
Mary Jane Alves, Cassidy Levy Kent (USA) LLP, of Washington, DC, for Defendant-
Intervenors Brooklyn Bedding, LLC; Corsicana Mattress Company; Elite Comfort
Solutions; FXI, Inc.; Innocor, Inc.; Kolcraft Enterprises, Inc.; Leggett & Platt, Inc.;
the International Brotherhood of Teamsters; and United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
Court No. 1:21-cv-00288 (SAV) Page 2
International Union, AFL-CIO. With her on the briefs were Yohai Baisburd and
Sydney Reed.
Vaden, Judge: On December 19, 2023, the Court issued a public slip
opinion in the underlying case affirming the United States International Trade
Commission’s (the Commission) affirmative injury finding. CVB, Inc. v. United
States, 47 CIT __, 2023 Ct. Intl. Trade LEXIS 189, Slip Op. 2023-184. Shortly
thereafter, the Commission notified the Court it believed the public opinion
contained unredacted business proprietary information. Def.’s Letter, ECF No. 90.
Before the Court is the Commission’s Joint Motion to Retract the Court’s Public Slip
Opinion and Accord Confidential Treatment to Business Proprietary Information
Contained Therein (Motion to Retract), ECF No. 93. For the reasons set forth
below, the Court respectfully DENIES the Motion.
BACKGROUND
The underlying case involves a challenge to the Commission’s final
affirmative injury determination in its investigation of mattresses from Cambodia,
China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam. See CVB,
2023 Ct. Intl. Trade LEXIS 189, at *1–2. The Slip Opinion outlined numerous
errors by the Commission but found the errors were ultimately harmless and
sustained the Commission’s final determination. See id. at *52. 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
Court No. 1:21-cv-00288 (SAV) Page 3
determination showed the opposite of what the Commission claimed they did. See
id. at *30–43.
After the Court released its opinion, the Commission contacted the Court by
telephone and email to express concerns that the opinion revealed confidential
business proprietary information. The next day, the Commission filed a Letter to
the Court on official Commission letterhead requesting that the Court retract its
opinion because the Commission “identified business proprietary information” in
the opinion. Def.’s letter at 1, ECF No. 90. The Court issued a Paperless Order the
same day informing the parties that a written motion was the appropriate way to
raise any concerns regarding confidential or business proprietary information. ECF
No. 91. After business hours on Friday, December 22, the Commission filed the
Joint Motion. Motion to Retract, ECF No. 93.
LEGAL STANDARDS
USCIT Rule 5(g) governs filings containing confidential or business
proprietary information. Rule 5(g)’s mandate is as clear as it is broad: “Any paper
containing confidential or business proprietary information must identify that
information by enclosing it in brackets.” The rule serves three purposes. First, the
rule protects confidential and business proprietary information by clearly
identifying it for the parties and the Court. Second, the rule promotes transparency
and public access to judicial records by requiring parties to designate precisely what
information is confidential. Parties cannot protect information en masse by
Court No. 1:21-cv-00288 (SAV) Page 4
stamping a label atop every page. Instead, they must excise only that information
which is truly confidential, allowing the public to view everything else. See USCIT
R. 5(g). Finally, the rule promotes judicial efficiency by providing the Court with
one record it examines to adjudicate the case. Bracketing allows the Court to look
at one place to see the entire record the agency considered and know what portion of
that record the parties claim is confidential without having to move back and forth
between different sources.
The Court’s rules do not define what constitutes confidential or business
proprietary information. 19 U.S.C. § 1677f(b) governs the Commission’s treatment
of business proprietary information. Information submitted to the Commission
“which is designated as proprietary by the person submitting the information shall
not be disclosed to any person without the consent of the person submitting the
information[.]” 19 U.S.C. § 1677f(b)(1)(A). Information is neither confidential nor
business proprietary if it is publicly available. See Food Mktg. Inst. v. Argus Leader
Media, 139 S. Ct. 2356, 2363 (2019) (defining confidential information as
information that is “private” or “secret”) (citing Webster’s Seventh New Collegiate
Dictionary 174 (1963)); see also 19 U.S.C. § 1677f(b)(2) (the Commission can
determine a party’s designation of information as proprietary is unwarranted based
on the information’s “nature and extent … or its availability from public sources”).
Cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002 (1984) (“Information that is
public knowledge … cannot be a trade secret.”) (internal citations omitted).
Court No. 1:21-cv-00288 (SAV) Page 5
Merely claiming information is confidential does not make it so. Were that
true, a party could designate anything it wanted as confidential. Even when the
parties agree to secrecy, courts are “duty-bound to protect public access to judicial
proceedings and records.” Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 417 (5th
Cir. 2021). Where the parties lack any incentive to defend the public’s right of
access, the Court must balance that right with the need for confidentiality. Id. at
419. Transparency — not secrecy — is the default rule. Id. at 417.
DISCUSSION
The Motion asks the Court to retract its Slip Opinion and issue a new
confidential opinion with forty-four sets of brackets in place of information
contained in the original Slip Opinion. See Motion to Retract Attach. A, ECF No.
93. The objected-to information falls into two broad categories, company names and
numerical approximations. First, the Motion to Retract objects to the Slip Opinion’s
naming of the companies that responded to the Commission’s questionnaires. See,
e.g., id. at 2–4 (requesting the Court remove the names of various companies). This
information is not confidential because the Commission failed to abide by USCIT
Rule 5(g) when designating information as confidential or business proprietary. See
id. at 3 (admitting the cited pages “were not individually bracketed”). Second, the
Motion to Retract objects to the Court’s usage of approximations to summarize
information the Commission did properly bracket according to USCIT Rule 5(g).
See, e.g., id. at 1–2 (objecting to various numerical approximations). This portion of
Court No. 1:21-cv-00288 (SAV) Page 6
the Motion fails because the information is publicly available, the Court’s
approximations do not “closely track” the Commission’s figures as the Motion to
Retract suggests, or both. Id. at 1. The Motion’s motley approach to redaction
demonstrates the importance of properly designating information as confidential
under USCIT Rule 5(g) and maintaining a consistent approach to what constitutes
confidential or business proprietary information. Compare id. at 1–2 (objecting to
company names and production ratios), with id. at 2–3 (objecting to company names
but not purchase ratios). The Commission can best encourage voluntary
cooperation from companies and protect allegedly confidential information by
following the rules. Cf. id. at 2–3 (explaining why protecting confidential
information is important to the Commission).
A. Company Names
The Motion to Retract asks the Court to censor the names of “non-party
purchasers that voluntarily provided questionnaire responses” 1 to the Commission.
Id. at 2. According to the Motion, the Commission views the “entirety of purchaser
questionnaire responses, including the identity of those purchasers” as confidential
business proprietary information. Id. However, the responses to the purchaser
1 Although the Motion to Retract characterizes the responses as voluntary, the
questionnaire itself does not. The questionnaire states a response “is mandatory and
failure to reply as directed can result in a subpoena or other order to compel the submission
of records or information in your firm’s possession.” Blank “U.S. – Purchaser”
Questionnaire at 1, U.S. Int’l Trade Comm’n, https://bit.ly/3vjf04h (last visited Jan. 8,
2024). This is not the only inconsistency between what the Commission represents in the
Motion to Retract and what the Commission’s own questionnaires say. See infra note 4.
Court No. 1:21-cv-00288 (SAV) Page 7
questionnaires were not bracketed in accordance with USCIT Rule 5(g), meaning
any claim to confidentiality was waived long ago.
USCIT Rule 5(g) requires that “[a]ny paper containing confidential or
business proprietary information must identify that information by enclosing it in
brackets.” Counsel and the parties are responsible for complying with the Court’s
rules and orders regarding the redaction of sensitive information. Cf. In re E-
Government Act of 2002 and Privacy Redaction, Admin. Order No. 08-01, at 2 (CIT
May 2, 2008, amend. Nov. 25, 2008, eff. Jan. 1, 2009),
https://www.cit.uscourts.gov/sites/cit/files/AO-08-01.pdf (“It is the responsibility of
counsel and the parties to be sure that all filings comply with the Court’s Rules,
orders, or notices regarding the redaction of personal data identifiers or other
sensitive information.”). The Commission admits that it did not bracket the
purchaser questionnaires filed with the Court. Motion to Retract Attach. A at 3,
ECF No. 93. The Motion to Retract makes three excuses for this. First, it asserts
that the company names were bracketed in the Commission’s index to the record.
Id. Second, it notes that the Commission stamped a “Business Proprietary” label
atop the pages of the questionnaires. Id. Third, it makes veiled excuses about the
length of the administrative record. See id. (describing the confidential joint
appendix as “voluminous”).
The Motion’s first excuse is that the Commission bracketed the company
names in the index it filed with the confidential joint appendix. This is half true
Court No. 1:21-cv-00288 (SAV) Page 8
but of no consequence. The index does contain brackets in place of the names of the
companies that responded to the questionnaires; but instead of brackets around the
purportedly confidential information (e.g., “[company name]”), the index contains
brackets around empty space (e.g., “[ ]”). See, e.g., Confidential J.A. Index at 39–
40, ECF No. 66. That is how the public version of a document should be bracketed,
not the confidential version. See USCIT R. 5(g) (“A non-confidential version in
which the confidential or business proprietary information is deleted must
accompany a confidential version of a paper.”). This detail is crucial because it
means that, even if the Court exercised extra diligence and searched the entire
confidential joint appendix to confirm a company’s name was not designated as
confidential anywhere, it would not locate the place where the Commission
supposedly designated the company name as confidential because the blank space
in place of the company name would not show up in a search. Disregarding the
parties’ error does them no service, as bracketing information somewhere else in the
record does not magically afford protection across the entire record.
The second excuse proffered is the “business proprietary” label stamped at
the top of the questionnaire pages. Motion to Retract Attach. A at 3, ECF No. 93.
This label, which is often partially obscured by the stamping mechanism of the
Court’s e-filing system, is exactly the type of blanket designation that USCIT Rule
5(g) prohibits. Rule 5(g) does not allow parties to designate information as
confidential by labelling an entire page. Indeed, even Government officials
Court No. 1:21-cv-00288 (SAV) Page 9
classifying a document for national security reasons must indicate “which portions
are classified … and which portions are unclassified.” Exec. Order No. 13,526, 75
Fed. Reg. 707, 710 (Dec. 29, 2009). Looking at the Commission’s questionnaires, it
is apparent why blanket designation is disfavored. One question asks, in essence,
whether the responding company is a brick-and-mortar or online retailer. Blank
“U.S. – Purchaser” Questionnaire at 9, U.S. Int’l Trade Comm’n,
https://bit.ly/3vjf04h (last visited Jan. 8, 2023). 2 Surely it is no secret whether a
company has physical storefronts or whether it sells mattresses online. Allowing
blanket designation like the Motion to Retract requests is incompatible with a
system where public access to judicial proceedings is the default rule. See Binh Hoa
Le, 990 F.3d at 417.
Finally, the Commission makes numerous allusions to the length of the
administrative record to justify its failure to abide by USCIT Rule 5(g). See, e.g.,
Motion to Retract at 2, ECF No. 93 (noting the length of the confidential record);
Motion to Retract Attach. A at 3, ECF No. 93 (twice describing the record as
“voluminous” while explaining that the Commission “inadvertently” failed to
bracket large swaths of the record it now claims contain confidential information).
Courts may not use administrative burden to justify denying public access to
judicial records. In re Leopold to Unseal Certain Elec. Surveillance Applications &
2 A blank version of the purchaser questionnaire in this investigation is available for
download on the Commission’s website at the listed URL.
Court No. 1:21-cv-00288 (SAV) Page 10
Ords., 964 F.3d 1121, 1134 (D.C. Cir. 2020) (Garland, J.). Neither can quasi-judicial
agencies like the Commission.
The Commission and the other parties missed multiple opportunities to raise
concerns about this information earlier. If the parties believed the company names
were confidential, the parties should have bracketed that information. See USCIT
R. 5(g). Some of the information to which the Motion to Retract objects was
discussed in open court at oral argument. See, e.g., Oral Arg. Tr. at 25:5–26:16,
ECF No. 75 (discussing specific companies by name and their product mixes). If the
parties believed this information was confidential, they should have raised that
concern during oral argument or on reviewing the transcript. See Admin. Order No.
02-01 at 8, 20 (outlining the procedures for breaches involving confidential
information); Def.’s Public Req. for Redaction, United States v. Aegis Security Ins.
Co., No. 1:20-cv-03628 (CIT Jan. 2, 2024), ECF No. 132 (requesting redaction of
allegedly confidential information in an oral argument transcript). It is strange
that only now, after an opinion some may characterize as less than complimentary,
does the Commission demand secrecy. If it was fine to discuss unbracketed
company names in a public court session, it is fine to do the same in a written public
opinion. The Commission’s request to redact the names of the responding
companies is therefore DENIED.
Court No. 1:21-cv-00288 (SAV) Page 11
B. The Court’s Use of Approximations
The second category of information to which the Motion to Retract objects is
the Court’s use of numerical approximations to describe the general conditions of
the mattress market. See generally Motion to Retract Attach. A at 1–2, ECF No. 93.
This includes the origin of imports, relative share of imported and domestic
mattresses in the market, and the segmented nature of mattress production and
purchasing. See id.As a preliminary matter, the Court doubts that much of the allegedly
confidential information the Commission did properly bracket qualifies as
confidential by the Commission’s own definition 3 or by any reasonable
understanding of the terms “confidential” or “business proprietary.” The
Commission’s own questionnaires state “[t]he commercial and financial data
furnished in response to this questionnaire that reveal the individual operations of
your firm will be treated as confidential” and that “general characterizations of
numerical business proprietary information (such as discussion of trends)” will be
treated as confidential information only for good cause. 4 Blank “U.S. – Purchaser”
Questionnaire at 4 (emphasis added). Yet the Motion to Retract objects to public
3 The Commission’s rules do not necessarily govern the Court, but information that fails to
satisfy the Commission’s standards for confidentiality is unlikely to satisfy the Court’s
standards.
4 In the Motion to Retract, the Commission claims that it considers “the entirety of
purchaser questionnaire responses” to be business confidential information. Motion to
Retract Attach. A at 3, ECF No. 93. Once again, the Commission’s own questionnaires are
at war with its Motion. Cf. supra note 1.
Court No. 1:21-cv-00288 (SAV) Page 12
discussion of the general market trends of declining Chinese imports and rising
imports from other countries. See Motion to Retract Attach. A at 1, ECF No. 93.
That is precisely the type of information the Commission’s questionnaires
acknowledge is not confidential or business proprietary. It does not reveal the
individual operations of any company and is instead a general discussion of broad
market trends. The same goes for the Slip Opinion’s description of the respective
market shares of imported and domestically produced mattresses. See CVB, 2023
Ct. Intl. Trade LEXIS 189, at *4, *10–11.
Much of the information on market trends and market share is publicly
available. The decline in Chinese imports and concurrent rise in imports from other
countries is well documented. See, e.g., David Perry, China’s Mattress Import Share
Falls to 1% in August, FURNITURE TODAY (Oct. 8, 2019), https://bit.ly/4aFKfH9
(reporting Chinese mattresses were 82 percent of imports in January 2019 and 1
percent in August 2019); David Perry, Mattress Alliance, Petitioners Square Off
Over Antidumping, FURNITURE TODAY (Apr. 13, 2020), https://bit.ly/3H3wmVE
(reporting Vietnam, Thailand, Turkey, Serbia, Malaysia, Indonesia, and Cambodia
collectively account for 83.3 percent of mattress imports). Information about the
relative market share of imports and the domestic industry is also available from
general interest newspapers. Nathan Bomey, Chinese ‘Dumping’ Has Slashed
Mattress Prices, but at a Cost to the U.S. Bedding Industry, USA TODAY (Dec. 19,
2019), https://bit.ly/47qssRn (stating Chinese imports in 2018 were “equivalent to
Court No. 1:21-cv-00288 (SAV) Page 13
about one-third of total mattress production capacity in the United States.”). The
Court will not redact information as confidential that some of the responding
parties themselves have freely provided to the press. See, e.g., David Perry,
Mattress Alliance, Petitioners Square Off Over Antidumping, FURNITURE TODAY
(Apr. 13, 2020), https://bit.ly/3H3wmVE (quoting Ashley Furniture Vice President
Brian Adams saying imports from Vietnam, Thailand, Turkey, Serbia, Malaysia,
Indonesia, and Cambodia make up “22 [percent] of the U.S. mattress market” and
“83.3 [percent] of all mattress imports”). Although the parties claim that knowledge
of Ashley Furniture’s lopsided mattress production is “sensitive,” Ashley’s Vice
President Brian Adams testified at the Commission’s public hearing and stated that
Ashley had shifted “almost exclusively to [boxed mattresses], both in our purchases
and in our production.” Compare Motion to Retract Attach. A at 2, ECF No. 93,
with Statement of Brian Adams at 143:25–144:5, J.A. at 7,569, ECF No. 60, and
CVB, 2023 Ct. Intl. Trade LEXIS 189, at *36 (“Of the twelve companies that
produced both mattress types in 2019, five produced virtually none of one kind” and
“Ashley … produced far less than one percent of U.S. production of one kind of
mattress.”). Because this information is publicly available, it fails to qualify as
confidential or business proprietary information. See Food Mktg. Inst., 139 S. Ct. at
2363.
Even if information is confidential or business proprietary, the Court’s use of
approximations appropriately summarizes the information without revealing exact
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figures. See Blank “U.S. – Purchaser” Questionnaire at 4 (“general
characterizations of numerical business proprietary information” will be treated as
confidential only for good cause). Some of the objections raised border on frivolity.
For instance, the Motion to Retract objects to the Court’s use of the phrase
“thousands of percent[.]” Motion to Retract Attach. A at 1, ECF No. 93; see also
CVB, 2023 Ct. Intl. Trade LEXIS 189, at *4. Thousands of percent can mean
anything from 2,000 percent to 999,999 percent. Such a wide range can hardly tip
off a reader to anything approaching the exact number the Commission bracketed.
The same goes for the term “negligible.” Compare Motion to Retract Attach. A at 2,
ECF No. 93, with CVB, 2023 Ct. Intl. Trade LEXIS 189, at *36. The word negligible
is comparative. See Webster’s Second New International Dictionary 1638 (1956)
(defining negligible as “that may be neglected or disregarded”); Negligible, Oxford
English Dictionary, https://bit.ly/3NRiW2R (defining negligible as “so small or
insignificant as not to be worth considering”). That a company’s market share of
boxed mattress production is negligible compared to its unknown share of flat-
packed mattress production does not reveal the actual market share percentage for
either. Compare Motion to Retract Attach. A at 2, ECF No. 93, with CVB, 2023 Ct.
Intl. Trade LEXIS 189, at *35–36.
Elsewhere, the Court similarly couches its language to avoid exactness. The
Slip Opinion uses words like “roughly,” “about,” and “at least” to indicate that the
numbers given are merely a rough approximation. See, e.g., CVB, 2023 Ct. Intl.
Court No. 1:21-cv-00288 (SAV) Page 15
Trade LEXIS 189, at *4, *10, *35, *39. It also uses ratios to demonstrate the
lopsided nature of domestic mattress production without revealing the raw
production figures. Id. at *35–37. Ballpark figures like these provide enough
information for the reader to understand the case without revealing any
confidential or business proprietary information. Because these general summaries
do not reveal such information, they need not be redacted.
C. The Virtues of Transparency
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. Binh Hoa Le, 990 F.3d at 418 (“The principle traces back to Roman
law, where trials were res publica — public affairs.”). 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.” Id. at 421. 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. See Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 595 (1980) (Brennan, J., concurring) (“Closed trials breed
suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law.”).
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
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questionable position on transparency before the Court. The Commission took a
similar tact in a high-profile case involving fertilizer imports. See generally OCP
S.A. v. United States, 658 F. Supp. 3d 1297 (CIT 2023). 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. Audio Recording: Conference Call Regarding Oral Argument at 24:33–50
(June 7, 2022), ECF No. 144. 5 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. Id. at
29:05–15. The Court decided to hold a public oral argument with a confidential
session at the end if necessary. Id. at 33:00–35:00. The transcript of the eventual
oral argument was 229 pages. See Confidential Oral Arg. Tr., ECF No. 130. The
public portion comprised 192 of those pages. See Public Oral Arg. Tr., ECF No. 129.
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).
5 The ECF Numbers in this citation and the remaining citations in this paragraph
correspond to docket entries in the OCP case, not this case. The Court Number for OCP is
1:21-cv-00219.
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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. See, e.g.,
Derek Miller & Miles Hansen, Will Biden ‘Go to the Mattresses’ on Trade Policy?
THE HILL (Feb. 23, 2021), https://bit.ly/3NPsHOQ. Numerous local outlets reported
the petitions’ potential effects on businesses. See, e.g., Dennis Romboy, Mattress
Fight: Utah Firm Says ‘Corporate Warfare’ Threatens to Blunt Filling Critical
Coronavirus Needs, DESERET NEWS (Apr. 18, 2020), https://bit.ly/3tEcxBa. Senators
on both sides of the political aisle publicly commented on the petitions and how the
Commission handled them. See, e.g., id. (Senator Mike Lee of Utah); Brown, Blunt
Applaud Trade Commission Ruling on Mattress Antidumping Investigation (July 6,
2021), https://bit.ly/48EUdXr (Senators Sherrod Brown of Ohio and Roy Blunt of
Missouri). 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. See,
e.g., Romboy, Mattress Fight, DESERET NEWS (Apr. 18, 2020), https://bit.ly/3tEcxBa
Court No. 1:21-cv-00288 (SAV) Page 18
(Mattress company Malouf claiming the petition in this case “threatens to shut
down its business and leave 1,200 workers … without jobs”). 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. See Bien
Hoa Le, 990 F.3d at 417 (“[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.”); Matter of Krynicki, 983 F.2d 74, 75 (7th Cir.
1992) (“What happens in the halls of government is presumptively open to public
scrutiny.”). Though the Commission may be an “independent” agency, it is not
immune to legal and democratic accountability. Cf. 19 U.S.C. §§ 1330, 1333(g). The
Constitution governs all branches of the Government — even the administrative
state. See Loper Bright Enters., Inc. v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022),
cert. granted in part sub nom. Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429
(2023); Relentless, Inc. v. Dep't of Com., 62 F.4th 621 (1st Cir.), cert. granted in part
sub nom. Relentless, Inc. v. Dep't of Com., 144 S. Ct. 325 (2023).
CONCLUSION
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
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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 .
Stephen Alexander Vaden, Judge