`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued September 20, 2022
`
`
`Decided December 20, 2022
`
`No. 21-5215
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`CHINA TELECOM (AMERICAS) CORPORATION,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:20-mc-00116)
`
`
`
`
`
`Raechel K. Kummer argued the cause for appellant. On
`the briefs were Andrew D. Lipman and Russell M. Blau. Clara
`Kollm entered an appearance.
`
`
`Casen Ross, Attorney, U.S. Department of Justice, argued
`the cause for appellee. On the brief were Brian M. Boynton,
`Principal Deputy Assistant Attorney General, and Sharon
`Swingle and Dennis Fan, Attorneys.
`
`
`Before: HENDERSON and KATSAS, Circuit Judges, and
`EDWARDS, Senior Circuit Judge.
`
`
`
`
`
`

`

`2
`
`Opinion for the Court filed by Circuit Judge HENDERSON.
`
`KAREN LECRAFT HENDERSON, Circuit Judge: In a license
`revocation proceeding before the Federal Communications
`Commission (FCC), the United States sought to admit
`classified evidence relating to electronic surveillance it had
`conducted against China Telecom (Americas) Corporation
`(China Telecom). Pursuant
`to
`the Foreign Intelligence
`Surveillance Act (FISA), 50 U.S.C. §§ 1801 et seq., the
`government filed this petition for a determination that the
`electronic surveillance was lawful and that fruits of the
`surveillance were admissible
`in
`the underlying FCC
`proceedings. See id. § 1806(f). After the district court granted
`the government’s petition, the FCC revoked China Telecom’s
`license in the underlying action and we then denied China
`Telecom’s petition for review of the FCC order without relying
`on or otherwise considering the classified evidence. See China
`Telecom (Ams.) Corp. v. FCC, No. 21-1233 (D.C. Cir. Dec. 20,
`2022). Because the government’s petition no longer presents a
`live controversy, China Telecom’s appeal from the district
`court order is moot. Accordingly, we vacate the district court
`order granting the government’s petition and remand to the
`district court with instructions to dismiss the case.
`
`I.
`
`We begin with a brief history of the proceedings to
`determine the lawfulness of the government’s electronic
`surveillance of China Telecom and the admissibility of related
`classified evidence in the underlying FCC proceedings.
`Because our opinion in China Telecom (Americas) Corp. v.
`FCC ably sets forth the history of the FCC proceedings in
`which
`the government
`intended
`to use
`the classified
`information at issue, we need not recount it at length here. See
`No. 21-1233, Slip Op. at 8–10 (D.C. Cir. Dec. 20, 2022).
`
`
`
`

`

`3
`
`The government’s petition arises from FCC proceedings to
`revoke China Telecom’s common-carrier license under section
`214 of the Communications Act of 1934, Pub. L. No. 73-416,
`§ 214, 48 Stat. 1064, 1071–72 (codified as amended at 47
`U.S.C. § 214). See China Telecom, No. 21-1233, Slip Op. at 8–
`10 (describing underlying FCC revocation proceedings). In
`2020, several federal agencies, including the Department of
`Justice (DOJ), jointly recommended that the FCC revoke China
`Telecom’s common-carrier
`license. To
`support
`their
`recommendation, the agencies provided the FCC with an
`exhibit containing classified evidence derived from their
`electronic surveillance of China Telecom under FISA, which
`statute permits the Executive Branch to conduct electronic
`surveillance to obtain foreign intelligence information. See
`50 U.S.C. §§ 1801 et seq.
`
`As required by FISA, the DOJ notified China Telecom that
`it intended to “enter into evidence or otherwise use or disclose”
`classified information in the then-pending FCC proceedings.
`50 U.S.C. § 1806(c). In response, China Telecom moved for
`disclosure of all FISA-related information in the FCC’s
`possession, both to protect China Telecom’s asserted due
`process rights and to determine whether there were grounds to
`seek suppression of the classified information. The information
`sought included materials submitted by the government to
`obtain
`initial authorization
`to conduct
`the electronic
`surveillance as well as evidence uncovered during the
`surveillance.
`
`FISA empowers the federal district court to adjudicate
`“issues
`regarding
`the
`legality
`of FISA-authorized
`surveillance,” ACLU Found. of S. Cal. v. Barr, 952 F.2d 457,
`470 (D.C. Cir. 1991),
`including
`those
`that arise
`in
`administrative proceedings, see id. at 462. The relevant FISA
`provision, 50 U.S.C. § 1806, attempts to balance the nation’s
`
`
`
`

`

`4
`
`interest in national security with the rights of an “aggrieved
`person” against whom the government intends to use classified
`information. See United States v. Belfield, 692 F.2d 141, 148
`(D.C. Cir. 1982). When the government notifies the court of its
`intent to use information derived from electronic surveillance
`or when an aggrieved person moves “to discover, obtain, or
`suppress evidence or information obtained or derived from
`electronic surveillance” before an agency adjudicator like the
`FCC, “the United States district court in the same district as the
`[agency] shall” consider the lawfulness of the surveillance and
`determine whether suppression or disclosure is appropriate.
`50 U.S.C. § 1806(c), (f). The court reviews the classified
`surveillance materials in camera and ex parte “if the Attorney
`General files an affidavit under oath that disclosure or an
`adversary hearing would harm the national security of the
`United States.” Id. § 1806(f).
`
`Because China Telecom opposed the admission in FCC
`proceedings of classified materials derived
`from
`the
`government’s FISA surveillance, the government invoked
`section 1806(f) and petitioned
`the district court for a
`determination
`that
`the FISA surveillance was
`lawfully
`authorized and conducted. The government included with its
`petition the Attorney General’s declaration that disclosure of
`the surveillance materials would harm national security, thus
`allowing the district court to review the petition ex parte and in
`camera pursuant to section 1806(f).
`
`During its ex parte and in camera review, the district court
`orders disclosure of
`classified
`information
`in
`two
`circumstances. First, the court “may” order disclosure of
`classified information to the aggrieved person “only where
`such disclosure is necessary to make an accurate determination
`of the legality of the surveillance.” 50 U.S.C. § 1806(f).
`Second, on determining that the FISA surveillance “was
`
`
`
`

`

`5
`
`lawfully authorized and conducted,” the court “shall” order
`disclosure of classified evidence “to the extent that due process
`requires discovery or disclosure.” Id. § 1806(g). After the
`government provided notice of its intent to use FISA evidence
`under section 1806(c) and initiated the district court’s review
`under section 1806(f), China Telecom requested disclosure on
`both grounds: first, it argued that disclosure was necessary to
`assist the court in determining the lawfulness of the
`government’s surveillance, see id. § 1806(f); and second, it
`argued that due process required disclosure, see id. § 1806(g).
`
`In the order challenged here, the district court granted the
`government’s petition and denied China Telecom’s request for
`disclosure. See United States v. China Telecom (Ams.) Corp.,
`No. 20-mc-116, 2021 WL 4707612, at *3 (D.D.C. Sept. 2,
`2021). China Telecom filed a timely notice of appeal.
`
`Following the district court’s order, the parties returned to
`the FCC revocation proceeding and the FCC subsequently
`issued a unanimous order revoking and terminating China
`Telecom’s section 214 common-carrier license. See China
`Telecom (Ams.) Corp., FCC 21-114, 36 FCC Rcd. ---,
`2021 WL 5161884, at *1 (Nov. 2, 2021). Although the FCC
`considered classified evidence derived from
`the FISA
`surveillance, it expressly stated that the classified evidence was
`“not necessary” to support its decision to revoke and terminate
`China Telecom’s license. Id. China Telecom then petitioned for
`review of the FCC’s revocation order. China Telecom, No. 21-
`1233, Slip Op. at 3. We upheld the FCC’s decision to revoke
`China Telecom’s license based on the unclassified evidence
`alone. See id. at 10.
`
`II.
`
`The district court had subject matter jurisdiction pursuant
`to 50 U.S.C. § 1806(f), which gives the federal district court
`
`
`
`

`

`6
`
`exclusive jurisdiction to adjudicate the admissibility and
`disclosure of classified materials derived from the FISA
`surveillance of an “aggrieved person.” China Telecom tries to
`invoke our appellate jurisdiction through a timely notice of
`appeal from the district court’s order granting the government’s
`petition and denying China Telecom’s request for disclosure.
`Our jurisdiction, however, is not clear in light of our
`companion decision denying China Telecom’s petition for
`review of the FCC’s order. See China Telecom (Ams.) Corp. v.
`FCC, No. 21-1233, Slip Op. at 25 (D.C. Cir. Dec. 20, 2022).
`There, we upheld the FCC’s revocation order on the merits
`based on the unclassified record alone, without considering or
`otherwise relying upon the classified materials of which China
`Telecom now seeks disclosure. See id. at 3.
`
`“Article III, Section 2 of the Constitution permits federal
`courts to adjudicate only actual, ongoing controversies.” J.T. v.
`District of Columbia, 983 F.3d 516, 522 (D.C. Cir. 2020)
`(quoting McBryde v. Comm’n to Review Cir. Council Conduct,
`264 F.3d 52, 55 (D.C. Cir. 2001)); see also Chafin v. Chafin,
`568 U.S. 165, 171–72 (2013). The Constitution therefore
`prohibits us from deciding a case if “events have so transpired
`that the decision will neither presently affect the parties’ rights
`nor have a more-than-speculative chance of affecting them in
`the future.” Sec’y of Lab., Mine Safety & Health Admin. v. M-
`Class Mining, LLC, 1 F.4th 16, 21–22 (D.C. Cir. 2021)
`(quoting J.T., 983 F.3d at 522); see also Knox v. Serv. Emps.
`Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012). “The
`case must remain live ‘at all stages of review,’” including on
`appeal, and “‘not merely at the time the complaint is filed.’”
`United Bhd. of Carpenters & Joiners of Am. v. Operative
`Plasterers’ & Cement Masons’ Int’l Ass’n of the U.S. & Can.,
`721 F.3d 678, 687 (D.C. Cir. 2013) (quoting Steffel v.
`Thompson, 415 U.S. 452, 459 n.10 (1974)). Accordingly, we
`must dismiss the case “if an event occurs while a case is
`
`
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`

`

`7
`
`pending on appeal that makes it impossible for the court to
`grant ‘any effectual relief whatever’ to a prevailing party.”
`Church of Scientology v. United States, 506 U.S. 9, 12 (1992)
`(quoting Mills v. Green, 159 U.S. 651, 653 (1895)).
`
`the FCC’s underlying
`this Court upheld
`Because
`revocation decision without
`relying on or otherwise
`considering the classified evidence, China Telecom’s request
`for disclosure of the classified evidence is now moot. See City
`of El Paso v. Reynolds, 887 F.2d 1103, 1105–06 (D.C. Cir.
`1989) (per curiam) (appeal from order denying discovery
`became moot when underlying case for which discovery was
`sought was decided on merits); Green v. Nevers, 196 F.3d 627,
`632 (6th Cir. 1999) (pending discovery dispute mooted by
`disposition of underlying cause of action). The government
`petitioned the district court to use classified materials
`specifically in support of the FCC’s revocation decision; this
`Court ultimately decided the merits without considering these
`materials. If the government wishes to use such materials in
`another proceeding against China Telecom, the government
`must again petition a “United States district court” for a
`determination that the FISA surveillance of China Telecom
`“was lawfully authorized and conducted,” see 50 U.S.C.
`§ 1806(f), at which point the court will adjudicate whether
`principles of due process require disclosure, see id. § 1806(g).
`Because “there is ‘no pending [administrative proceeding] in
`which [the requested materials] can be used,’” Convertino v.
`U.S. Dep’t of Just., 684 F.3d 93, 101 (D.C. Cir. 2012) (quoting
`City of El Paso, 887 F.2d at 1106), the district court’s order
`denying disclosure “no longer poses a risk of continuing legal
`consequences,” M-Class Mining, 1 F.4th at 22.
`
`Similarly, China Telecom has no right to challenge the
`surveillance materials apart from their use in the FCC
`revocation proceeding, which terminated on appeal without
`
`
`
`

`

`8
`
`regard to the classified evidence of which China Telecom seeks
`disclosure. Here, the district court’s review of the surveillance
`materials was triggered by the government’s notice of its intent
`to use the surveillance in a “trial, hearing, or other proceeding
`in or before [a] court, department, officer, agency, regulatory
`body, or other authority of the United States.” 50 U.S.C.
`§ 1806(c). In response, China Telecom principally requests
`disclosure pursuant to section 1806(g), asserting a due process
`right to discover the classified materials so that it may defend
`itself in the underlying FCC proceeding. See id. § 1806(g)
`(requiring disclosure of classified surveillance material at issue
`in administrative proceedings “to the extent that due process
`requires discovery or disclosure”). But this Court’s denial of
`China Telecom’s petition for review based solely on the
`unclassified record deprived China Telecom of a “personal
`stake” in the disclosure of the classified materials. See Lewis v.
`Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (quoting Los
`Angeles v. Lyons, 461 U.S. 95, 101 (1983)). Any order
`requiring the government to disclose classified evidence at
`issue in an FCC revocation proceeding would be wholly
`ineffectual because the proceedings in which the parties sought
`to use that evidence have ended. See Nat’l Black Police Ass’n
`v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)
`(federal courts have no power to “decide questions that cannot
`affect the rights of litigants in the case before them” (quoting
`Preiser v. Newkirk, 422 U.S. 395, 401 (1975))).
`
`When a case becomes moot on appeal, “[t]he established
`practice . . . in the federal system . . . is to reverse or vacate the
`judgment below and remand with a direction to dismiss.”
`Humane Soc’y of U.S. v. Kempthorne, 527 F.3d 181, 184 (D.C.
`Cir. 2008) (quoting Arizonans for Off. Eng. v. Arizona,
`520 U.S. 43, 71 (1997) (alteration in original)); see also Clarke
`v. United States, 915 F.2d 699, 706 (D.C. Cir. 1990) (en banc)
`(citing United States v. Munsingwear, 340 U.S. 36, 39 & n.2
`
`
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`

`

`9
`
`(1950)). “Vacatur is in order when,” as now, “mootness occurs
`through happenstance—circumstances not attributable to the
`parties.” Humane Soc’y, 527 F.3d at 187 (quoting Arizonans,
`520 U.S. at 71). This remedy “clears the path for future
`relitigation by eliminating a judgment the loser was stopped
`from opposing on direct review.” Id. at 185 (quoting Arizonans,
`520 U.S. at 71).
`
`Accordingly, in light of our companion decision in China
`Telecom (Americas) Corp. v. FCC, No. 21-1233, we vacate the
`district court order granting the government’s petition. We
`remand to the district court with instructions to dismiss the case
`as moot.
`
`
`
`So ordered.
`
`
`
`