CBP Violated Due Process Rights by Failing to Provide BCI Access, Federal Circuit Says

The U.S. Court of Appeals for the Federal Circuit in a key July 27 opinion held that CBP violated importer Royal Brush Manufacturing's rights to due process by refusing to allow it access to business confidential information in an antidumping and countervailing duty evasion proceeding. The court ruled that the "relatively immutable" principle of due process, where the government must provide access to the evidence used as the basis for an action that seriously injures an individual, extends to administrative proceedings. Judge Timothy Dyk, the author of the opinion, said the court is aware of no such court holding showing that business confidential information is exempt from this rule, adding there is no "legitimate government interest" in refusing to provide access to this information in Enforce and Protect Act cases. The court also said there is no case supporting the government's "extraordinary theory" that it can avoid due process compliance by failing to provide for a protective order.