ANDERSON, Circuit Judge:
Consumers Union appeals from that part of the district court judgment denying its request for an injunction ordering the Veterans Administration (VA) to disclose comparative scores and the scoring schemes relating to tests conducted by the VA on hearing aids. The court did order the VA to disclose
Since 1955, the VA has been engaged in a program of testing hearing aids for distribution to veterans. It sends invitations to bid to hearing aid manufacturers six months before the start of the contract year, and companies submitting bids are required to provide the VA with samples which are tested to determine their acoustical and electronic qualities. The raw test data is converted to a "quality point score" for each sample by means of mathematical formulae termed the "scoring scheme."
The invitations issued by the VA to bid for the 1968 contract and those in prior years included a statement of policy that the results of the tests were primarily for VA use only;
In September 1967, Consumers Union, a non-profit corporation which evaluates consumer products and publishes Consumers Reports, requested that the VA disclose the raw scores, scoring schemes and quality point scores for the 1965 and 1966 contract years pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The request was later amended to cover the 1968 contract year only. After the request was refused and all administrative remedies were exhausted, Consumers Union brought the present action on July 19, 1968 in the district court pursuant to 5 U.S.C. § 552(a) (3),
The district court granted Consumers Union's requested injunction with respect to the demand for the raw scores, but denied the request for the scoring schemes and quality index scores. It held that although the express terms of the Act permitted disclosure, the district court possessed discretion to deny relief where release of the information would result in harm to the public interest. Consumers Union appealed, arguing that the district court does not possess discretion to deny what the express terms of the Act permit and that such discretion, if possessed by the court, was improperly exercised. The VA cross-appealed, claiming that by ordering disclosure of the raw test data the district court improperly interpreted certain provisions of the Act.
Subsequent to the district court decision, the VA amended its solicitation for the 1970 contract year to permit disclosure of all three types of information sought by Consumers Union, and the information was disseminated. This policy was made retroactive to cover contract year 1968, and Consumers Union was provided with all the information it
The Government's claim of mootness is met first by Consumers Union's assertion that the doctrine of the law of the case precludes this court from reconsidering its prior determination that the appeal is not moot. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 566-567 (2 Cir. 1968); 1B Moore's Federal Practice ¶ 0.404. Assuming this contention to be correct,
Consumers Union repeatedly emphasized in its briefs and at oral argument that should the Government concede the illegality of its initial refusal to disclose the information and disclaim any intention of a repetition of the illegal activity, it would agree that the appeal was moot. At oral argument, the Government conceded that the results of the tests on hearing aids did not come within any of the exemptions to the Act and that no public interest rationale justified a withholding of the information. Although Consumers Union's concession is, of course, not dispositive, we think that the Government's is. It is therefore quite clear that the Government will not again assert that hearing aid
The appeal is therefore dismissed as moot.