Ninestar Says US Redacting Defense in UFLPA Case Falls Short
The government hasn't given a "compelling justification" for why it used "secret evidence" to add Ninestar Corp. to the Uyghur Forced Labor Prevention Act Entity List, Ninestar argued Jan. 15 (Ninestar Corp. v. United States, CIT # 23-00182).
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Ninestar, as part of its motion to unseal and unredact information in the case on the company's addition to the UFLPA Entity List, is challenging the government's purported right not to disclose certain information and to not share other information with anyone other than Ninestar's counsel. The U.S. has opposed the bid to unseal parts of the record because it said that information could prompt retaliation against an informant (see 2401100028).
In response, Ninestar said the U.S. has only given "barebones assertions that disclosure would reveal the informant's identity." That "is not, and cannot be, enough to satisfy the Government's burden."
Even if the information would "uncloak the informant," the exporter's need for the evidence trumps the privilege "because the informant's allegations are the only possible direct evidence supporting" the Forced Labor Enforcement Task Force's decision, the brief said. Factors such as the "informant's credibility, its precise allegations, and the dates of those allegations are central to Ninestar's claim that FLETF's decision lacked substantial evidence," Ninestar argued.
Although the government said that credibility is irrelevant because the case is an Administrative Procedure Act matter, Ninestar said an agency's witness credibility finding is not "immune from judicial scrutiny," citing D.C. Circuit precedent. It also said restrictions on the use of redacted information "substantially diminish[es] the Government's interest in non-disclosure."
Ninestar also criticized the U.S. attempt to disclose parts of the record to Ninestar's lawyer but not to the company itself. After the exporter initially argued that the entire record should be unsealed since the documents are not "law enforcement sensitive," the company said the U.S. failed to "offer a competing definition for 'law enforcement sensitive.'"
The government's claims rest on "its sleight of hand," the exporter said, arguing that the U.S. interest in secrecy "is irrelevant to the purely legal question of whether the materials satisfy the definition of 'law enforcement sensitive' information under the protective order." Ninestar said the redacted websites and internal agency documents used by FLETF don't meet this definition.
Oral argument will be held Jan. 18 on the motion to unseal the record, along with Ninestar's motion for a preliminary injunction.