In re US

Case: 24-1566 Document: 72 Page: 1 Filed: 02/02/2026

United States Court of Appeals for the Federal Circuit ______________________ IN RE UNITED STATES, Defendant-Appellant ______________________ 2024-1566 ______________________ Appeal from the United States Court of International Trade in No. 1:21-cv-00288-SAV, Judge Stephen A. Vaden. ______________________ Decided: February 2, 2026 ______________________ COURTNEY SHEEHAN MCNAMARA, Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendant-appellant. Also represented by MARGARET D. MACDONALD, KARL VON SCHRILTZ; LOREN MISHA PREHEIM, U.S. International Trade Commission.

ANDREW J. DHUEY, Andrew J. Dhuey, Attorney at Law, Berkeley, CA, argued as amicus curiae, pro se. Also repre- sented by BRIDGET ANNE CLARKE.

ALEXANDRA H. MOSS, Public Interest Patent Law Insti- tute, La Quinta, CA, argued as amicus curiae counsel. ______________________ Before DYK, TARANTO, and CHEN, Circuit Judges.

DYK, Circuit Judge.

Case: 24-1566 Document: 72 Page: 2 Filed: 02/02/2026

2 IN RE US

This is a companion case to No. 2025-127, which we have decided today in a separate opinion.

I In this antidumping and countervailing duty proceed- ing involving mattresses, the International Trade Commis- sion (the “Commission”) determined that an industry in the United States was materially injured by imports sold at less than fair value from Cambodia, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam and by subsidized imports from China. See Mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam, 86 Fed. Reg. 26545 (May 14, 2021).

On December 19, 2023, the Court of International Trade (“CIT”) issued a merits opinion sustaining the Com- mission’s final injury determination. Some of the infor- mation disclosed in this opinion had been treated by the Commission as confidential because it was submitted in re- sponse to Commission questionnaires, and the Commission treats all such information as confidential. The CIT did not redact information in its opinion that the Commission had treated as confidential, nor did it address the issue of con- fidential treatment.

On December 20, 2023, the Commission filed a letter asking that the court retract the public opinion and “allow the parties the opportunity to confer and submit comments regarding any BPI [business proprietary information] for which they believe the Court should afford confidential treatment.” App’x 557. 1 That same day, the CIT issued an order instructing the parties to file a motion on the docket regarding alleged confidential information that “iden- tif[ies] with specificity what the parties believe is

No. 12.

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IN RE US 3

Confidential[], reference[s] the Court’s Rules governing BPI, and include[s] any record pages cited in the opinion where the alleged BPI is bracketed.” App’x 92.

On December 22, 2023, the parties filed a joint motion requesting that the CIT reissue the opinion with specific redactions of company names and numerical approxima- tions identified in a chart attached to the motion. The mo- tion argued that confidential treatment should be afforded to the identified information because the Commission treats all information in questionnaire responses as confi- dential and for other reasons.

The CIT denied the motion on January 8, 2024. In an opinion relying on the common law right of access and em- phasizing the values of transparency to the judicial pro- cess, though not specifically addressing the relevant statute authorizing the court to disclose information, U.S.C. § 1516a, 2 the CIT concluded that the requested redactions did not meet the statutory requirements for con- fidential treatment under 19 U.S.C. § 1667f, App’x 51–62, because the information in the merits opinion was either “availabl[e] from public sources” or “disclosed in a form which cannot be associated with, or otherwise be used to

19 U.S.C. § 1516a(b)(2)(B).

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The Commission appeals the CIT’s denial of the joint motion. It argues that the statutory scheme in 19 U.S.C. § 1677f and 19 U.S.C. § 1516a abrogates the common law right of access and requires the CIT to preserve the confi- dential status of information afforded by the Commission; that it is proper for the Commission to automatically des- ignate questionnaire responses as confidential; and that the specific information identified in the joint motion is en- titled to confidential treatment.

II Since the claimed confidential information was re- leased over two years ago, this case would appear to be moot. See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 169 (2016) (“[N]o live controversy in the ordi- nary sense remains because no court is now capable of granting the relief petitioner seeks.”); Doe No. 1 v. Reed, 697 F.3d 1235, 1238–39 (9th Cir. 2012) (mooting injunction to prevent public release of petitions because “[t]his relief is no longer available because the petitions are now avail- able to the public”); see also Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1361 (11th Cir. 2021) (“Re- quiring UNOS to wait for a final judgment to appeal this order would allow the documents to enter public circula- tion, effectively rendering this appeal moot.”). The Com- mission nevertheless contends that the case is not moot because the issues presented fall into the exception for is- sues that are capable of repetition yet evading review.

“That exception applies ‘only in exceptional situations,’ where (1) ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,’ and (2) ‘there [is] a reasonable expectation that the same com- plaining party [will] be subject to the same action again.’”

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Kingdomware, 579 U.S. at 170 (alterations in original) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).

Standing alone, this case might well fall within the mootness exception. But this question is directly affected by our decision issued today in the companion case where we have addressed and resolved the merits of the Commis- sion’s contentions as to confidentiality and also held that, in cases involving claims of confidentiality, the CIT must give the Commission and the parties the opportunity to ob- ject before the claimed confidential material is released to the public. Under these circumstances, we conclude the “capable of repetition, yet evading review” exception does not apply.

The Tenth Circuit considered a similar issue in Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125 (10th Cir. 2006). In that case, Utah Shared Access Alliance (“USA-ALL”) contested the Bureau of Land Management’s (“BLM’s”) restrictions on off-road vehicle (“ORV”) use in two Utah counties. Id. at 1132–33. BLM issued two orders in 1999 and 2000 restricting ORV use in one of the coun- ties. Id. at 1132. After the suit was filed, BLM revoked those two orders and issued a new 2003 order. Id. at 1132– 33. USA-ALL argued that the Tenth Circuit could still re- view the two earlier orders under the exception to mootness for actions capable of repetition but evading review. Id. at 1134–35. The Tenth Circuit disagreed, noting “the 1999 and 2000 . . . Orders will not evade review because USA– ALL makes the same arguments with respect to those or- ders as it does with respect to the 2003 . . . Order, which this Court reviews.” Id. at 1135.

Under these circumstances, we agree with the Tenth Circuit that the issues presented in this appeal are moot and do not evade review. See also Nw. Res. Info. Ctr., Inc. v. Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1069–70 (9th Cir. 1995) (concluding that a section 10 permit was moot and did not evade review because parties could, and Case: 24-1566 Document: 72 Page: 6 Filed: 02/02/2026

DISMISSED COSTS No costs.