California Steel Indus., Inc. v. United States

2024 CIT 138

• Court: United States Court of International Trade
• Decided: December 13, 2024
• Docket: 21-00015
• Status: Published

Opinion

Slip Op. 24-138

UNITED STATES COURT OF INTERNATIONAL TRADE

CALIFORNIA STEEL INDUSTRIES, INC., Ct. No. 21-00015-MMB Plaintiff, v. UNITED STATES, Defendant.

ORDER

[The court unseals Slip Opinion 24-127 without redactions.]

Dated: December 13, 2024

Baker, Judge: In this Administrative Procedure Act case brought under

the court’s residual jurisdiction, see 28 U.S.C. § 1581(i), Plaintiff California

Steel, Inc. (CSI), challenges the Commerce Department’s denials of its requests

for exclusions from Section 232 national security tariffs on imported steel slab.

The agency based those denials on objections proffered by U.S. Steel Corpora-

tion, including material that the latter denominated as confidential. 1

After merits briefing, the court issued Slip Opinion 24-127 (ECF 145)

under provisional seal. 2 Concurrently, it informed the parties and amicus

1 Exclusion requestors and objectors may both submit “confidential or proprietary

business information” to the agency. 15 C.F.R. Pt. 705 Supp. 1(b)(5)(iii) (2020). Such filings are not “subject to public review.” Id. Supp. 1(b)(5)(i). 2 The court sustained most of Commerce’s denials and remanded the balance. curiae U.S. Steel 3 that absent any protest, it would unseal its unredacted de-

cision. See ECF 147. In so doing, it flagged the opinion’s citations to the confi-

dential record. See id. at 1–2. It also reminded the parties and U.S. Steel that

any proponent of redaction confronts a heavy burden. See id. at 2 n.1. “The

public’s right of access to judicial records is a fundamental element of the rule

of law.” Id. (quoting Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 417 (5th

Cir. 2021)). “[C]ourts are duty-bound to protect public access to judicial pro-

ceedings and records.” Id. (quoting Binh Hoa Le, 990 F.3d at 417).

U.S. Steel timely opposed unsealing the opinion and sought redactions.

See ECF 148. The government agreed with the company. See ECF 150. CSI

took no position.

For the reasons explained below, the court holds that U.S. Steel has not

carried its burden. Because “[t]ransparency is a touchstone of our judicial sys-

tem,” CVB, Inc. v. United States, 681 F. Supp. 3d 1313, 1323 (CIT 2024), appeal

pending sub nom. In re United States, No. 2024-1566 (Fed. Cir.), the court di-

rects the clerk to unseal Slip Opinion 24-127 without redactions. 4

3 The court denied the company’s attempt to intervene, see N. Am. Interpipe, Inc. v.

United States, 519 F. Supp. 3d 1313 (CIT 2021), aff’d sub nom. Cal. Steel Indus., Inc. v. United States, 48 F.4th 1336 (Fed. Cir. 2022), but later granted its request to file an amicus brief, see ECF 116. 4 In so doing, the court observes that the statutory cause of action asserted by CSI—

the APA—does not address the court’s public access obligations. Cf. 19 U.S.C. § 1516a(b)(2)(B) (providing that the court “shall . . . preserve[] . . . in any action under

2 I

“There is a strong presumption in favor of a common law right of public

access to court proceedings.” In re Violation of Rule 28(D), 635 F.3d 1352, 1356

(Fed. Cir. 2011) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597–99

(1978)). It “is especially strong” as to “[a] court’s decrees, its judgments, [and]

its orders,” which “are the quintessential business of the public’s institutions.”

E.E.O.C. v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996).

This presumption “serves the important functions of ensuring the integ-

rity of judicial proceedings in particular and of the law enforcement process

more generally.” Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661,

665 (D.C. Cir. 2017) (quoting United States v. Hubbard, 650 F.2d 293, 314–15

(D.C. Cir. 1980)). Most importantly, it undergirds the American experiment in

self-government. As James Madison observed, “[A] people who mean to be their

own Governors, must arm themselves with the power which knowledge gives.”

9 The Writings of James Madison 103 (Gaillard Hunt ed. 1910); see also United

States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (“[P]rofessional and public

monitoring is an essential feature of democratic control” of the federal

this section,” i.e., antidumping and countervailing duty cases, the “confidential or privileged status accorded to any documents, comments, or information,” except that it “may disclose such material under such terms and conditions as it may order”) (emphasis added). The court expresses no view about the extent, if any, to which § 1516a(b)(2)(B) limits the right of public access to judicial records in such cases.

3 judiciary, and “[s]uch monitoring is not possible without access to testimony

and documents . . . used in the performance of Article III functions.”).

The presumption of public access, however, “is not absolute.” In re Vio-

lation, 635 F.3d at 1356 (quoting Nixon, 435 U.S. at 598). It is rebuttable in

various circumstances, including when such access “୻‘might . . . become a vehi-

cle for improper purposes,’ for example, ‘as sources of business information that

might harm a litigant’s competitive standing.’୻” Id. (quoting Nixon, 435 U.S.

at 598). In considering whether to limit “the public’s access to [judicial] docu-

ments, the court must ‘weigh the interests advanced by the parties in light of

the public interest and duty of the courts.’୻” Id. at 1356–57 (alteration omitted)

(quoting Nixon, 435 U.S. at 602).

Under this balancing test, “the ordinary showing of good cause which is

adequate to protect discovery materials from disclosure cannot alone justify

protecting such material after it has been introduced at trial,” id. at 1358 (quot-

ing Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir. 1993))—and, by

extension, submitted in connection with dispositive motions. Instead, “୻‘only

the most compelling showing can justify’ limitations on the disclosure of ‘testi-

mony or documents actually introduced at trial.’୻” Id. (emphasis added) (quot-

ing Poliquin, 989 F.2d at 533). This principle necessarily applies to material

placed in “the joint appendix,” where a “court will look to find the admini-

4 strative record” in cases involving “judicial review of agency action,” Metlife,

865 F.3d at 667—at least where, as here, the court’s decision cites it.

In considering whether a proponent of redaction has made the necessary

showing, it is of no moment that “the parties agree to maintain confidentiality”

of such information. DePuy Synthes Prods., Inc. v. Veterinary Orthopedic Im-

plants, Inc., 990 F.3d 1364, 1370 (Fed. Cir. 2021). That’s because the federal

judiciary has “an independent duty to protect the public’s right of access.” Id.

This duty is surely at its zenith when it comes to this court’s opinions, as “[a]ll

decisions of the Court of International Trade shall be preserved and open to

inspection.” 28 U.S.C. § 257; cf. In re Application of Leopold to Unseal Certain

Elec. Surveillance Applications & Ords., 964 F.3d 1121, 1128 (D.C. Cir. 2020)

(“[S]ince at least the time of Edward III” in the 14th century, “judicial decisions

have been held open for public inspection.”) (citing 3 Edward Coke, Reports, at

iii–iv (London, E. & R. Nutt & R. Gosling 1738) (1602)). 5

II

Slip Opinion 24-127 addresses Commerce’s denials of CSI’s exclusion re-

quests in 2018 and 2020. U.S. Steel objects to unsealing the opinion’s quota-

tions of confidential submissions it made opposing both sets of requests.

5 For an in-depth examination of the venerable history of the right of public access to

judicial records, see Steven Wm. Smith, Kudzu in the Courthouse: Judgments Made in the Shade, 3 Fed. Cts. L. Rev. 177, 181–202 (2009).

5 As to CSI’s 2018 requests, U.S. Steel publicly represented to the Depart-

ment that it could supply slab within eight weeks. See Appx06778. The agency

relied on that representation. See Slip Op. at 11 (citing Appx01410). But in a

confidential filing with Commerce that the opinion repeatedly quotes, see id.

at 9, 30 & n.22, the latter company said something different—that it could not

provide slab beyond the companies’ contract amount until a date in 2018 that

was more than eight weeks after the former sought its exclusions.

U.S. Steel contends that the latter submission is “sensitive” because it

relates to “the company’s capacity to provide specific slab products on very

short notice.” ECF 148, at 6. And even though the material is “now several

years old,” disclosing “such information about [its] available capacity to supply

a particular product in a specific quantity and time frame undermines [the

company’s] negotiating position.” Id. at 6–7. The supporting declaration of Rob-

ert Kopf, vice president for sales, asserts that the relatively small market of

domestic purchasers of slab can be “manipulat[ed]” through “public release of

confidential information related [to] . . . delivery, availability, [or] timing.”

ECF 148-1, at 2.

The company has not carried its burden. As it acknowledges, the detail

in question—when it could supply CSI with slab volume greater than that spec-

ified in the companies’ 2018 contract—is more than six years old. “[I]nfor-

mation may lose its confidential nature once it becomes stale.” AmerGen

6 Energy Co. by & through Exelon Generation Co. v. United States, 115 Fed. Cl.

132, 141 (2014) (collecting cases). “[V]ague and speculative allegations of injury

from the disclosure of years-old information are not sufficient to overcome the

strong presumption favoring public access.” Id. The company hasn’t explained

with particularity how disclosure of this old data can impair its current com-

petitive position.

Moreover, even if the information weren’t stale, the court concludes that

U.S. Steel’s public representation that it could supply slab within eight weeks

waived any confidentiality claim about its concession undermining that same

assertion. In effect, it was a subject-matter waiver. Cf. Fort James Corp. v. Solo

Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005) (in the context of the attorney-

client privilege, “a party is prevented from disclosing communications that sup-

port its position while simultaneously concealing communications that do

not”).

The company also seeks to claim confidentiality as to its statement that

CSI “indicated that [it was] not comfortable with a higher volume” in the com-

panies’ supply contract. Slip Op. at 9, 30 n.22 (quoting Appx06787); ECF 148,

at 5 (asking court to redact “the direct quote”). In substance, however, the for-

mer publicly disclosed the same information in its surrebuttal: “[T]he stated

monthly volume range of [9,000–14,000 metric tons] was defined by CSI as the

amount they were willing to commit to buy.” Slip Op. at 9 (quoting Appx06782)

7 (emphasis in surrebuttal original). That disclosure waived any confidentiality

claim. See Jiangsu Alcha Aluminum Co. v. United States, 712 F. Supp. 3d 1376,

1381 n.3 (CIT 2024) (noting that parties can “waive[] any confidentiality claim

by referring to [assertedly business proprietary information] in their public

briefs and in open court”) (citing Fed. Cir. R. 25.1(c)).

As for the 2020 exclusion requests, U.S. Steel asks (see ECF 148, at 8)

that the court “publicly summarize rather than quote the timing and contents”

of an email from CSI that the former company proffered to Commerce. See Slip

Op. at 14 (quoting Appx22958). According to Mr. Kopf, to publicly release

“statements made while negotiating a sale” would undermine the company’s

“ability to negotiate with all buyers of a product.” ECF 148-1, at 1 (emphasis

in original). Such disclosure, he contends, might cause other customers to “try

to leverage this information in their own negotiations with U.S. Steel.” Id. The

company, however, disclosed the substance of that email on the public record

when it told Commerce that CSI “delayed October 2019 spot sale negotiations

. . . .” Appx22915; see also Appx22951 (stating on surrebuttal that “since Octo-

ber 2019, [CSI] has repeatedly declined the full spot sale volume offered by

U.S. Steel”). Any damage to its negotiating position with other customers—if

any—has already occurred.

Finally, U.S. Steel seeks redaction of the exact tonnage that it supplied

to CSI in the first half of 2020. See ECF 148, at 9–10; Slip Op. at 32. It asserts

8 that revealing the “precise volume of supplied product to a customer in such a

recent, narrow timeframe could impact current and future business dealings

with [its] other customers.” ECF 148, at 9–10. But it doesn’t explain how or

why that’s so, and Mr. Kopf’s declaration is even less helpful. In any event,

subject-matter waiver applies here as well. U.S. Steel stated on the public rec-

ord the precise tonnage it sold to CSI in 2018 and 2019. See Appx22949. The

former can hardly claim now that disclosure of the same information for the

first half of 2020 will harm its competitive position.

* * *

The court holds that U.S. Steel has not made the “most compelling show-

ing” that is necessary to justify restricting full public access to Slip Opinion

24-127. In re Violation, 635 F.3d at 1358 (quoting Poliquin, 989 F.2d at 533).

The clerk shall immediately unseal the decision without any redactions.

Dated: December 13, 2024 /s/ M. Miller Baker New York, New York M. Miller Baker, Judge