55 F.4th 939
D.C. Cir.2022Background
- The DOJ sought to introduce classified evidence obtained via FISA surveillance of China Telecom (Americas) in FCC proceedings to revoke China Telecom’s §214 common‑carrier license.
- Under 50 U.S.C. § 1806(c) the government notified China Telecom of its intent to use FISA‑derived materials; China Telecom moved for disclosure and suppression and invoked § 1806(f) review in federal district court.
- The Attorney General filed a declaration that disclosure would harm national security; the district court therefore reviewed the materials ex parte and in camera and granted the government’s petition, denying disclosure.
- The FCC then issued a unanimous order revoking China Telecom’s license, stating the classified FISA materials were not necessary to its decision.
- This court affirmed the FCC revocation based solely on the unclassified record, without considering the classified materials; thereafter China Telecom’s appeal from the district court’s § 1806(f) order became moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court should disclose FISA materials to China Telecom under §1806(f) and §1806(g) | China Telecom: disclosure necessary to determine lawfulness and required by due process | Government: disclosure would harm national security; court may and should review ex parte/in camera | District court initially denied disclosure; on appeal the issue is moot because FCC decision was affirmed on unclassified record |
| Whether the appeal from the §1806(f) order remains justiciable after FCC decision | China Telecom: retains interest in disclosure and review | Government: FCC ruling on unclassified record eliminates any live controversy | Appeal is moot; no live case or controversy remains |
| Whether this court has jurisdiction to review the district court order | China Telecom: timely appeal from district court order | Government: jurisdiction defeated by mootness following FCC decision | Court dismissed appeal as moot for lack of an ongoing controversy |
| Appropriate remedy for a moot appeal | China Telecom: (implicitly) sought merits or relief on disclosure | Government: mootness requires dismissal; vacatur appropriate when mootness not caused by parties | Court vacated the district court order and remanded with instructions to dismiss (Munsingwear vacatur) |
Key Cases Cited
- ACLU Found. of S. Cal. v. Barr, 952 F.2d 457 (D.C. Cir. 1991) (district courts adjudicate legality of FISA surveillance)
- United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (role of §1806 in balancing national security and aggrieved person’s rights)
- City of El Paso v. Reynolds, 887 F.2d 1103 (D.C. Cir. 1989) (discovery appeal mooted when underlying case resolved on the merits)
- Convertino v. U.S. Dep’t of Justice, 684 F.3d 93 (D.C. Cir. 2012) (no pending proceeding in which requested materials can be used moots discovery claim)
- Munsingwear v. United States, 340 U.S. 36 (1950) (vacatur appropriate when case becomes moot pending appeal)
- Humane Soc’y of U.S. v. Kempthorne, 527 F.3d 181 (D.C. Cir. 2008) (application of Munsingwear vacatur when mootness results from happenstance)
- Arizonans for Official Eng. v. Arizona, 520 U.S. 43 (1997) (vacatur doctrine discussion)
- Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) (standing requires a personal stake; loss of personal stake causes mootness)