The Federal Circuit released its opinion earlier this month in In re United States, a companion case to another case also styled In re United States, decided the same day in a separate opinion. This trade case attracted four amicus briefs. In it, the Federal Circuit considered the International Trade Commission’s appeal from a denial by the Court of International Trade of a motion. In an opinion authored by Judge Dyk and joined by Judges Taranto and Chen, the panel dismissed the case as moot. This is our opinion summary.
Judge Dyk first outlined the factual and procedural background:
In this antidumping and countervailing duty proceeding involving mattresses, the [Commission] determined that an industry in the United States was materially injured by imports sold at less than fair value . . . and by subsidized imports . . . . On December 19, 2023, the [CIT] issued a merits opinion sustaining the Commission’s final injury determination. Some of the information disclosed in this opinion had been treated by the Commission as confidential because it was submitted in response 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 . . . . 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 approximations identified in a chart attached to the motion . . . . The CIT denied the motion on January 8, 2024. In an opinion relying on the common law right of access and emphasizing the values of transparency to the judicial process . . . the CIT concluded that the requested redactions did not meet the statutory requirements for confidential treatment . . . 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 identify, operations of a particular person,’ . . .
The Commission appeals the CIT’s denial of the joint motion.
Beyond this background, Judge Dyk began his analysis by observing that “this case would appear to be moot” because the claimed confidential information was released over two years ago. He noted that the “Commission nevertheless contends that the case is not moot because the issues presented fall into the exception for issues that are capable of repetition yet evading review.”
After breifly outlining the requirements for that exception, Judge Dyk explained that, although “this case might well fall within the mootness exception . . . this question is directly affected by our decision issued today in the companion case where we have addressed and resolved the merits of the Commission’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 object before the claimed confidential material is released to the public.” In light of that ruling, Judge Dyk concluded, “the ‘capable of repetition, yet evading review’ exception does not apply.”
In this regard, Judge Dyk discussed a Tenth Circuit case in which an appellant challenged two agency orders. After suit was filed, the agency revoked those two orders and issued a new one. The appellant argued “the Tenth Circuit could still review the two earlier orders under the exception to mootness for actions capable of repetition but evading review.” The Tenth Circuit disagreed, however, reasoning that the earlier orders would not evade review because the appellant raised the same arguments with respect to the new order, which the court was reviewing in another case.
Judge Dyk agreed with the reasoning of the Tenth Circuit and concluded that “the issues presented in this appeal are moot and do not evade review.” He emphasized that “[i]ssues that have been reviewed and resolved on the merits in a companion case cannot be said to evade review for the purpose of a mootness exception.”
As a result of Judge Dyk’s analysis, the panel dismissed the Commission’s appeal.