Opposition — Prudential Insurance Co. of America v. National Organization for Women

IN THE

Supreme Court of the United States

OcToBER TFRM, 1976

No. 76-1052

THE PRUDENTIAL INSURANCE COMPANY

oF AMERICA, é¢ al., Petitioners,

v.

NATIONAL ORGANIZATION FOR WOMEN,

Wasuincton, D.C. CHAPTER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENT NATIONAL

ORGANIZATION FOR WOMEN, WASHINGTON, D.C.

CHAPTER, IN OPPOSITION

7—eo_CC--—

Lois J. SCHIFFER

MarGarREet A. Koon

Women’s Rights Project

Center for Law and Social

Poliey

1751 Ny Street, N. W.

Of Counsel: Washington, D.O. 20036

JupItH LICHTMAN CoLLotT GUERARD

Women’s — Defense Media Access Project

Fund, Ine 1912 N Street, N.W.

1424 16th Street, N.W. Washington, D.C. 20036

Washington, D.C. Attorneys for Respondent

20036 National Orgamzation for

Women, Washington, D.C.

March 30, 1977 Chapter

Pures or Brnon S. Apams Parvrine, Inc., Wasuineron, D. C.

i

TABLE OF CONTENTS .

| Page

Table of le CO iii

Opinion below....... TUTTITITITT TT 1

q Jurisdiction.......ccceeeeeetecees 2

Questions presented. ......++seeee- 2

Statutory provisions involved..... 2

Statement of the case....... seeces -

ABPGUMORC. ccccccccccesccccceeesecse 6

I. Certiorari Before Judgment

is an Extraordinary Remedy

Unwarranted in this Case.. 6

II. The District Court Proper-

ly Held that §709(e) Did

Not Bar Disclosure by

Agencies Other Than EEOC

of EEO-1 Reports Filed

Pursuant to Executive

Order 11246 as Amended.... 1l

III. This Court Need Not Consi-

der the Second Issue Pre-

sented for Review Since

§1905 is Inapplicable to

the Material at Issue, and

Even if it were Applicable,

the Conflict in the Cir-

cuits as to Whether Mater-

ial Covered by §1905 is

ii

Exempt from Disclosure

Under Exemption (b) (3)

has been Resolved by Re-

cent Legislative Amend-

MONES. ccccccceccceses seee

DL” DT eoeeeeeeeee @

Page

iii

TABLE OF AUTHORITIES

Cases

Administrator, FAA v. Robertson,

Gee Welle Faw Calas 6006660066806

Brown v. Westinghouse Electric

Corp., Petition for Certiorari

pending No. 76-1192...........

Chamber of Commerce v. Legal Aid

Society of Alameda County, 423

U.S. 1309 (1975)...... TPTTTITE

Charles River Park "A", Inc. v.

HUD, 519 F.2d 935 (D.C. Cir.

ETS a ES ree

Chrysler Corp. v. Schlesinger,

412 F.Supp. 171 (D. Del.

Biv 6466466666666660666 eseeee#ese?

Committee for Nuclear Responsi-

bility, Inc. v. Schlesinger,

Gee Gels SE CASTE 6eecceesoces

Crown Central Petroleum Corp. v.

aeoERS: 14 FEP Cases 49 (D.

Md. i, PRESCOT CTY TTT eeeee

Hannah v. Larche, 363 U.S. 420

Di?) «tisbnnneneseedeseeesesce

Holiday Inns, Inc. v. Kleppe, 13

FEP Cases 1337 (W.D. Tenn.

ly, }) PPPOE TTTETT ELIT TTTrT

Page

14,18

8,9,10

13

18

12

13

iv

Lawyers Cooperative Publishing

Co. v. Schlesinger, Civ. Ac-

tion No. 74-212 (W.D. N.Y.,

Rawal BB, IGT ccccscceoscevees

Legal Aid Society of Alameda

County v. Schultz, 349 F.Supp.

TUE Welle’ Gees SUPE) ccccccces

National Parks and Conservation

Assn. v. Kleppe, 547 F.2d 673

(D.C. Cir. 1976) ..ccccccccccecs

New Haven Inclusion Cases, 399

U.S. 392, cert. granted, 396

S.s- Se. Cee anne tdeeeneews

New York Times v. United States,

403 U.S. 713 (1971).....2-2-4.-

Paul v. United States, 371 U.S.

245 (1963) wc cccccccccces ce ceees

Robertson v. Department of De-

fense, 402 F.Supp. 1342 (D.D.c.

eee TeTTTTT

Sears, Roebuck & Co. v. General

Services Administration, 509

F.2d 527 (D.C. Cir. 1974)......

United States v. Nixon, 418 U.S.

683 (1974) ..cccccecccccceces cee

Vitarelli v. Seaton, 359 U.S.

535 nh. ccc e os eoeeee seeeeeee

13

4,13

20

17

12

4,12

17

Vv

Page

Westinghouse Electric Corp. v.

Schlesinger, 542 F.2d 1190

GGG Gabe BOTOD deccoceocececoeecs passim

Youngstown Sheet and Tube Co.

v. Sawyer, 343 U.S. 579

hn eb heed a kunneeeesu bases 7

Statutes and Executive Orders

5 U.S.C. §552(b) (3) (Freedom of

SROGERESER BSE) coccceceseeesee passim

5 U.S.C. §552(b) (4) (Freedom of

SRUORERSIOR ASS) «cc cecseceecese 18

The Government in the Sunshine

op ) errr, TT TTrrirrrTyrTeT Terr 13,19

18 U.S.C. §1905 (Trade Secrets

ACE) ccc cece cece cecccccseseess PASSIM

42 U.S.C. §2000e (Title VII of

the 1964 Civil Rights Act)..... 3,13

42 U.S.C. §2000e-8(e).... 2. eee eee passim

44 U.8.C. Duis 66660800066066068 12

Executive Order 11246, 30 Fed. Reg.

12319, as amended by Executive

Order 11375, 32 Fed. Reg. 14303,

3 C.F.R. at 169 et seq.......-- passim

vi

Page

Executive Order 11246 as amended,

yi} PPrrrrrrrrrrererrrrerr ree i 17

Regulations

41 C.F.R. §60-1.4(a)........220., 14

41 C.F.R. §60-1.7...... TUTTLE TTT 5

41 C.F.R. §60-2......-2 200. cecces 5

41 C.F.R. §60-40.2(b).....-2 2 eee 17”

41 C.F.R. §60-40.3.... ccc ccceenes 17

41 C.F.R. §60-40.4....... coccces . passim

41 C.F.R. §60-60.3... ccc ccccccee 5

Other Authorities

H. Rep. No. 94-880, 94th Cong.,

2nd Sess. (1976)... ceeeeees . 14,19

H. Conf. Rep. No. 94-1441, 94th

Cong., 2nd Sess. (1976)........ 14,19

S. Conf. Rep. No. 94-1178, 94th

Cong., 2nd Sess. (1976)........ 19

Stern & Gressman, Supreme Court

Practice (4th Ed., 1969)....... 6

Supreme Court Rules, 20.......... 6,7,9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-1052

THE PRUDENTIAL INSURANCE COMPANY

OF AMERICA, et al.,

Petitioners,

Vv.

NATIONAL ORGANIZATION FOR WOMEN

WASHINGTON, D.C. CHAPTER, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENT

NATIONAL ORGANIZATION FOR WOMEN,

WASHINGTON, D.C. CHAPTER,

IN OPPOSITION

OPINION BELOW

The memorandum opinion of the Dis-

trict Court, which has been informally

reported at 14 FEP Cases 83 (D.D.C.,

1976), appears in the Petition for

Certiorari, Pet. App. A at la, et seq.

2

JURISDICTION

The jurisdictional requisites are

adequately set forth in the Petition.

QUESTIONS PRESENTED

Respondent believes that the Petition

properly presents the following ques-

tions:

(1) Whether Federal contract compli-

ance agencies, none of which are the

Equal Employment Opportunity Commission,

are barred by 42 U.S.C. §2000e-8(e), as

incorporated in exemption (b) (3) of the

Freedom of Information Act, 5 U.S.C.

§552(b) (3), from disclosing EEO-1l re-

ports filed by Federal contractors pur-

suant to Executive Order 11246 as

amended?

(2) Whether EEO-1l reports and

limited parts of AAPs are exempt from

disclosure under exemption (b) (3) of

the FOIA because of 18 U.S.C. §1905?

STATUTORY PROVISIONS INVOLVED

In addition to the statutory provi-

sions set forth in the Petition at pp.

3-5, one other authority is relevant.

The pertinent regulation of the

Office of Federal Contract Compliance

Programs, 41 C.F.R. 60-40.4, provides

in full:

§60-40.4. Information disclosure

of which is prohibited by law.

3

The Standard Form 100 (EEO-1)

which is submitted by contractors

to the OFCC, a compliance agency

Or a Joint Reporting Committee

servicing both the OFCC and the

- EEOC shall be disclosed pending

further instructions from the

Director, OFCC. The statutorv

prohibition on disclosure set

forth in Section 709(e) of the

Civil Rights Act of 1964 is

limited by the terms of that

section to information obtained

pursuant to the authority of

Title VII of that Act and its

disclosure by employees of the

EEOC.

STATEMENT OF THE CASE

Respondent D.C. NOW believes that

certain facts in addition to those in

the Petitioners' statement of the case

are relevant to the Court's considera-

tion of the Petition.

Petitioners Prudential, Metropolitan,

and John Hancock, all federal government

contractors, have filed EEO-1 reports

and other equal employment opportunity

1550-1 reports, or Standard Form

100's, require a statistical breakdown

of the employer's workforce into nine

broad categories by race, sex, and

national origin. A sample EEO-1 form

is set forth in the Petition for Cer-

tiorari, Pet. App. F, at 64a-65a.

4

data, which Respondent National Organi-

zation for Women, Washington, D.C.

Chapter ("D.C." NOW") seeks, with the

Insurance Compliance Staff of the Social

Security Administration ("ICS").2 The

Office of Federal Contract Compliance

Programs ("OFCCP") of the Department of

Labor, the office which has primary

enforcement responsibility for Executive

Order 11246, as amended, 3 C.F.R. at 169

et seg., has designated ICS as the con-

tract compliance agency for the insur-

ance industry. The Executive Order

requires that government contractors not

discriminate in employment on the basis

of race, sex, religion or national

Origin. OFCCP has promulgated regula-

tions to implement the Executive Order,

including a requirement that government

contractors file EEO-ls, and certain

*Mechanically, the Petitioners, like

all other government contractors, file

EEO-1 forms with the Joint Reporting

Committee, an agency which collects and

funnels forms to each federal agency

with which they must be filed. The

forms directed to ICS never pass through

the custody of EEOC. The procedure

serves the convenience of the companies,

see infra, pp. 15-16, but does not

affect legal requirements for disclosure.

See, e.g. Sears, Roebuck & Co. v.

General Services Administration, 509

F.2d 527, 529 (D.C. Cir. 1974); Legal

Aid Society of Alameda County v. Shultz,

349 F.Supp. 771, 775-6 (N.D. Calif.

1972).

5

Affirmative Action Plans ("AAPs") ,> with

the designated compliance agency.

OFCCP regulations promulgated pursu-

ant to the Executive Order put all

federal contractors on notice that EEO-1

forms which federal contractors submit to

a contract compliance agency such as ICS

are subject to public disciosure, not-

withstanding §709(e) of the 1964 Civil

Rights Act, 42 U.S.C. §2000e-8(e). 41

C.F.R. §60-40.4. Such disclosure is an

integral part of doing business with the

government.

On January 19, 1977, all three

petitioners filed with this Court appli-

cations for stays pending the filing of

this Petition for _Certiorari and a

decision thereon.> Those stay applica-

tions differed significantly. Neither

John Hancock nor Prudential requested

that this Court stay disclosure of those

3although AAPs are prepared for each

establishment, they are submitted to the

compliance agency only upon its request.

41 C.F.R. §60-60.3

4Ssee C.F.R. §60-1.7 and §60-2, et

seq.

This case is also pending on appeal

in the U.S. Court of Appeals for the

District of Columbia Circuit on cross-

appeals taken by D.C. NOW, the three

companies and the federal parties. The

brief of appellant/cross-appellee D.C.

NOW was filed in that Court on March 21,

1977.

6

portions of the AAPs which the District

Court had found must be disclosed under

the FOIA and as to which it denied pre-

liminary injunctions. For those two

companies, therefore, the only materials

at issue here are their EEO-l reports.

Only Metropolitan contests the release

of those limited portions of company

AAPs that the District Court found dis-

closable under the FOIA, although all

three companies are competitors. Metro-

politan sets forth no special reasons

why disclosure of its AAP material--which

the District Court found as a matter of

fact would not cause substantial compe-

titive harm--is barred by the FOIA. ©

ARGUMENT

I. CERTIORARI BEFORE JUDGMENT

IS AN EXTRAORDINARY REMEDY

UNWARRANTED IN THIS CASE.

Certiorari before judgment, re-

quested by the Petitioners here, is rare-

ly granted. U.S. Supreme Court Rule 20;

Stern & Gressman, Supreme Court Practice

Spetitioners’ failure to describe

Metropolitan's AAP material in any de-

tail, or to indicate clearly that it is

material which the District Court found

would not in any event be covered under

18 U.S.C. §1905 because disclosure would

not cause substantial competitive harm

(see Pet. App. A, at 26a) demonstrates

that Metropolitan's AAP material is not

the primary focus of the Petition in

this case.

7

(1969), §4.21 at 183. The remedy is

available in only two circumstances,

neither of which is present here.

First, the case is not one in-

volving issues of such imperative public

importance as to require deviation from

normal appellate processes. The case

presents no constitutional issues at all,

much less any of great significance. The

fate of the nation does not ride on the

outcome of this case in the way it may

have rested on decisions in such cases

as United States v. Nixon, 418 U.S. 683

(1974); and Youngstown Sheet and Tube

Co. v. Sawyer, 343 U.S. 579 (1952), cases

in which Rule 20 was applied appropri-

ately. Nor does pressure of time prohi-

bit or limit recourse to a Court of

Appeals.’ Matters with far greater

"setitionecs suggest that the only

way they can have their case reviewed by

this Court is by certiorari before judg-

ment. But they were not barred from

seeking relief first from the Court of

Appeals, where the issues could have

been more carefully delineated, the

Court could have considered whether to

follow its earlier rulings, and a deci-

sion with a statement of the facts and

the law helpful to this Court would have

been provided. Nor did the companies

seek stays from the Court of Appeals or

from this Court to permit an appeal

to the Court of Appeals. Neither John

Hancock nor Metropolitan has ever re-

quested a stay pending appeal from the

Court of Appeals or from this Court,

(Continued)

8

urgency and constitutional significance

have been considered by this Court only

after review by the United States Court

of Appeals. See, e.g. New York Times

v. United States, 403 U.S. 713 (1971)

(Pentagon Papers); Committee for Nuclear

Responsibility, Inc. v. Schlesinger, 404

U.S. 917 (1971) (underground nuclear

explosion at Amchikta Island, Alaska) .8

Second, despite Petitioners'

claims, no case raising the same or

similar questions of law is already pend-

ing before this Court. Petitioners

suggest that related questions may be

presented if this Court grants a petition

for certiorari filed on February 28,

1977 in Brown v. Westinghouse Electric

Corp., Pet. No. 96-1192, seeking review

of Westinghouse Electric Corp. v.

Schlesinger, 542 F.2d 1190 (4th Cir.

1976). Pendency of a petition for cer-

tiorari does not, however, meet the

and Prudential first requested such a

stay pending appeal in its Reply to the

Government's Opposition to Stay, filed

on March 11, 1977 in Nos. A-586, A-587,

and A-588.

Srhe remedy of certiorari before

judgment is so extraordinary that

Respondents' counsel have found only

one case, United States v. Nixon, supra,

in which certiorari before judgement

was granted during the past five years

solely because of the importance of

the case.

9

necessary criteria for application of

Rule 20. That Rule has been applied,

on limited occasions, when the same

parties were involved in the case already

pending as well as in the one for which

certiorari before judgment was requested.

See, e.g. New Haven Inclusion Cases, 399

U.S. 392, 418, cert. granted, 396 U.S.

1056 (1970); Hannah v. Larche, 363 U.S.

420 (1960). The same parties are not

involved here.

Also, On rare occasions this

Court has granted certiorari before

judgment when a case with clearly simi-

lar issues had already been accepted for

consideration by this Court. To

counsel's knowledge, no response has yet

been filed to the Petition for a Writ of

Certiorari in Westinghouse, supra, and

certiorari has not been granted.

Even if this Court grants cer-

tiorari in Westinghouse, it should not

grant certiorari before judgment here

because the cases raise altogether

different issues.

First, Westinghouse and the

instant case involve different indus-

tries, with different competitive con-

sequences for disclosure.

Second, the companies in the

Westinghouse case did not prevail on the

Ice. Petition herein at 3; Petition

in Westinghouse, supra, at 2.

10

issue of whether §709(e) barred disclo-

sure of materials filed under the federal

contract compliance program, and did not

cross-petition for certiorari on that

issue. Westinghouse Electric Corp. v.

Schlesinger, supra, 542 F.2d at 1199.

Therefore, that issue, raised by Peti-

tioners here, cannot be before this

Court in Westinghouse.

Third, the second issue raised

by Petitioners here--whether §1905 is

included in exemption (b) (3) of the

FOIA, and therefore whether certain

material covered by §1905 is exempt

from disclosure under the FOIA--is also

not presented in Westinghouse. Rather,

that case raises the question whether

material already found exempt from dis-

closure under the FOIA Can be released

nevertheless as a matter cf agency dis-

cretion.

Finally, neither of the ques-

tions raised in the Westinghouse peti-

tion for certiorari is presented here.+0

10mne Petition for Certiorari in

Westinghouse first asks this Court to

consider whether the agency can exercise

discretion to permit disclosure of mater-

ial exempt from mandatory disclosure

under the FOIA, and then asks what stand-

ard of review is appropriate for agency

decisions to disclose information. The

first question differs from that present-

ed here. See supra, p. 10. The second

question in the Westinghouse Petition is

not presented because in the instant

(Continued)

11

Therefore, these cases do not present

the same or similar issues for review.

Furthermore, even if a case is

pending which raises the same or similar

issues, that alone is not sufficient for

this Court to grant certiorari before

judgment. To be considered, the addi-

tional case should present a helpful

complement to the earlier case by better

illuminating the issues presented. The

usual procedure for most related cases

is for litigants to take an appeal to the

Court of Appeals, and request that the

appellate courts defer consideration of

cases until the Supreme Court acts on

the related case. To depart from that

procedure will cause untold clogging of

this Court with applications for cer-

tiorari in marginally related cases,

and impose a great burden on this Court.

II. THE DISTRICT COURT PROPERLY

HELD THAT SECTION 709(e) DID

NOT BAR DISCLOSURE BY AGENCIES

OTHER THAN EEOC OR EEO-1

REPORTS FILED PURSUANT TO

EXECUTIVE ORDER 11246 AS

AMENDED.

In the instant case, the Dis-

trict Court judge held that the prohi-

bition on disclosure of documents in

42 U.S.C. §2000e-8(e), §709(e) of the

case the companies were afforded de

novo review in the District Court, , and

have therefore not raised the issue

here.

12

Equal Employment Opportunity Act, appli-

ed only to officers and employees of the

EEOC. The holding relied on a series of

decisions which "uniformly rejected, such

arguments. Pet. App. A, at 8a-9a. The

ruling was eminently correct; in fact,

no Circuit Court which has considered the

issue has held otherwise. Sears, Roebuck

& Co. v. General Services Administration,

supra, 509 F.2d at 529. Westinghouse

Electric Corp. v. Schlesinger, supra,

542 F.2d at 1199.12

llthe District Court also rejected

out of hand John Hancock's contention

about the applicability of 44 U.S.C.

§3508, which subjects agencies receiving

documents from another agency to the same

disclosure restrictions as the original

agency. Ibid. Since the ICS does not

receive the EEO-l forms from the EEOC,

whose officials are the only ones ex-

pressly covered by §709(e), §3508 must

be inapplicable. The only Circuit Court

of Appeals ruling on the issue has so

found. Sears, Roebuck & Co. v. General

Services Administration, supra, 509 F.2d

at 529.

12aimost all the District Courts that

have ruled on the disclosability of

EEO-ls by contract compliance agencies

have found that §709(e) does not exempt

them from disclosure under the (b) (3)

exemption of the FOIA. Chrysler Corp. v.

Schlesinger, 412 F.Supp. 171, 175 (D.

Del. 1976) (on appeal); Crown Central

Petroleum Corp. v. Kleppe, 14 FEP Cases

49 (D. Md. 1976); Robertson v. Department

(Continued)

13

Moreover, the reasons for the

District Court's ruling are sound. The

insurance companies filed their EEO-1l

forms with the IcsS,13 not with the EEOC.

The forms were filed pursuant to re-

quirements in regulations implementing

Executive Order 11246, as amended, not

pursuant to requirements of Title VII of

the Civil Rights Act of 1964, 42 U.S.C.

§2000e. Also, officials of ICS, not

officials of EEOC, are those who were

asked to disclose, and who now seek to

disclose, the EEO-1l forms requested.

Congress has recently reaffirmed

its intent to limit applicability of

§709(e) to officials of the EEOC. In

the Government in the Sunshine Act, P.L.

94-409 (Sept. 13, 1976), it clarified

the scope of exemption (b) (3). The

of Defense, 402 [.Supp. 1342 (D.D.C.

1975); Lawyers Cooperative Publishing

Co. v. Schlesinger, Civ. Action No. 74-

212 (W.D.N.Y. April 22, 1975) (Slip op.

at 3); Legal Aid Society of Alameda

County v. Shultz, supra, 349 F.Supp.

5-76 (N.D. Cal. 72); contra,

Holiday Inns, Inc. v. Kleppe, 13 FEP

Cases 1337 (Wb Fenn. 157s)

In Chamber of Commerce v. Legal Aid

Society of Alameda County, 423 U.S. 1309

(1975), relied on by Petitioners, Jus-

tice Douglas, acting as Circuit Justice

during the Court's summer recess,

denied a stay of disclosure of EEO-l

forms.

l3see also supra, p. 4, n. 2.

14

House Report supporting that law states:

"Section 5(b) amends exemp-

tion (3) of the Freedom of Infor-

mation Act... to overrule the

decision of the Supreme Court in

Administrator, FAA v. Robertson,

422 U.S. 255 (1972)... Examples

of statutes that could justify

withholding under the amended

exemption (3) includes [sic]

sections 706(b) and 709(e) of

the Civil Rights Act of 1964,

as amended (42 U.S.C. §§2000e-

5(b), 2000e-8(e) and section

314(a) (3) of the Federal Elec-

tion Campaign Act (2 U.S.C.

§437g(a) (3), which require the

Equal Employment Opportunity

Commission and the Federal

Election Commission, respec-

tively to withhold certain

information relating to in-

formal conciliation and en-

forcement efforts..." H. Rep.

No. 94-880, 94th Cong., 2nd

Sess., pp. 22-23 (1976).

(emphasis added.)

The House provision was adopted and its

purpose reaffirmed by the Conference

Committee. See H. Conf. Rep. No. 94-

1441, 94th Cong., 2nd Sess., at 25

(1976).

Of course, the OFCCP enforce-

ment mechanism grows out of a term in a

contract between the government and

Petitioners. See 41 C.F.R. §60-1.4(a).

If Petitioners do not wish disclosure

of documents submitted under that pro-

15

gram, they can simply decline the con-

tract.

Moreover, limiting the applica-

bility of §709(e) to the EEOC is sensi-

ble and serves the convenience of con-

tractors like Petitioners. That limit

increases the likelihood that federal

contractors such as Petitioners will be

asked to complete a single form provid-

ing information useful to a number of

federal agencies, rather than several

forms seeking similar data. OFCCP regu-

lations require disclosure of EEO-1l

forms,+4 and the agency maintains that

disclosure is helpful in securing com-

pliance with _equal employment laws which

it enforces.15 If §709(e) were held

applicable to the forms, rather than to

the agency using the forms, OFCCP could

Simply place a disclaimer on the form,

Or request the same information on a

form with a different name and number.

l4see 41 C.F.R. §60-40.4, set forth

at p. 2, supra. This clear regulation

was in force at the time Petitioners

filed their EEO-1l forms for use by

OFCCP and ICS. It counters Petitioners'

arguments that they were not on notice

that ICS and OFCCP would disclose the

EEO-1l1 forms.

13see Affidavit of Stephen Ronfeldt

and Russell Galloway, Exhibit 2 to D.C.

NOW Opposition to Petitioners' Request

for Stay Pending Certiorari Before

Judgment, filed on January 19, 1977 in

Nos. A-586, A-587 and A-588.

16

Therefore, a ruling that §709(e) applies

to officials of agencies other than the

EEOC, and bars disclosure of the docu-

ments at issue here, would disregard the

express language of §709(e), and would

be futile.

In the face of the clear langu-

age of §709(e), the stated intent of

Congress to limit its applicability to

the EEOC, and the good sense of such a

rule, Petitioners’ arguments for another

interpretation do not raise a substantial

legal question appropriate for certiorari

before judgment.

III. THIS COURT NEED NOT CONSIDER

THE SECOND ISSUE PRESENTED

FOR REVIEW SINCE §1905 IS

INAPPLICABLE TO THE MATERIAL

AT ISSUE, AND EVEN IF IT

WERE APPLICABLE, THE CONFLICT

IN THE CIRCUITS AS TO WHETHER

MATERIAL COVERED BY §1905 IS

EXEMPT FROM DISCLOSURE UNDER

EXEMPTION (b) (3) HAS BEEN

RESOLVED BY RECENT LEGIS-

LATIVE AMENDMENTS.

Petitioners ask this Court to

determine whether 18 U.S.C. §1905 is in-

corporated in exemption (b) (3) of the

FOIA, which exempts from mandatory dis-

closure information barred from disclo-

sure by other statutes. However, the

EEO-l1 forms and limited AAP information

at issue here is not covered by §1905;

therefore, on the facts of this case,

the legal issue is only hypothetical and

would not affect the outcome of whether

the material must be disclosed.

17

First, on its face 18 U.S.C.

§1905 is inapplicable to the material at

issue here. Section 1905 does not pro-

hibit disclosure "authorized by law."

See text of §1905, Pet. at 5. Disclosure

of the equal employment materials at

issue here is authorized by law. OFCCP

has issued regulations requiring disclo-

sure of EEO-ls and AAPs. See e.g. 41

C.F.R. §60-40.2(b), 41 C.F.R. §60-40.3,

41 C.F.R. §60-40.4.16 Since disclosure

of the material which the District Court

found exempt is otherwise authorized by

law, it is not barred from disclosure

by §1905.

On a second ground as well the

material is not covered by §1905. Courts

16nhese regulations are promulgated

pursuant to authority conferred on the

Department of Labor by federal Executive

Order 11246, 30 Fed. Reg. 12319, as

amended by Executive Order 11375, 32

Fed. Reg. 14303, 3 C.F.R. at 169 et seq.,

prohibiting government contractors s from

discriminating in employment practices.

Executive Order 11246 provides at §201:

"The Secretary of Labor shall be respon-

sible for the administration of Parts

II and III of this Order and shall

adopt such rules and regulations and

issue such orders as he deems necessary

and appropriate to achieve the purposes

thereof." That these regulations have

the force and effect of law is beyond

dispute. See, e.g. Paul v. United

States, 371 U.S. 245, 255 (1963);

Vitarelli v. Seaton, 359 U.S. 535, 540

(1959).

18

have repeatedly held that material

barred from disclosure under §1905 is

the same as that which is exempt from

disclosure under FOIA exemption (b) (4).

See, e.g. Charles River Park "A", Inc.

v. HUD, 519 F.2d 935, 941, n. 7 (D.C.

Cir. 1975); Westinghouse Electric Corp.

v. Schlesinger, supra, 542 F.2d at 1204,

n. 38. Since the District Court deter-

mined that none of the information at

issue before this Court fell within the

(b) (4) exemption because disclosure

would not cause substantial competitive

harm to Petitioners, on the facts as well

the material at issue is not covered

by §1905. Therefore, even if this Court

reached the hypothetical legal question

for which Petitioners seek certiorari,

and determined as petitioners urge that

§1905 is one of the statutes covered

by exemption (b) (3), the information

before this Court would not be exempt

from disclosure under the FOIA.

Furthermore, while it is true

that the two Circuits which have con-

sidered whether §1905 is within the (b)

(3) exemption of the FOIA have split on

the issue, recent legislative amendments

to the FOIA have resolved the conflict.

In September, 1976, shortiy before the

Fourth Circuit decided Westinghouse,

supra, Congress amended (b) (3) to

clarify its scope. The amendment was

expressly designed to reverse the hold-

ing of this Court in Administrator, FAA

v. Robertson, 422 F.2d 255 (1975), on

which the companies in the instant case

and the Court in Westinghouse, supra,

relied to establish that §1905 is cover-

ed by exemption (b) (3). See Pet. App.

19

at 22-25; Westinghouse Electric Corp.

v. Schlesinger, supra, 542 F.2d at 1199-

1203.17 The Westinghouse Court did not

consider the new legislation. 18 The

17see S. Conf. Rep. No. 94-1178, 94th

Cong., 2nd Sess., at 24-25 (1976); House

Conf. Rep. No. 94-1441, 94th Cong., 2nd

Sess., at 25 (1976). The House Report

on the bill, H. Rep. No. 94-880, 94th

Cong., 2nd Sess., p. 23 (1976) provided:

"Under the amendment,... the

Trade Secrets Act, 18 U.S.C. §1905,

which relates only to the disclo-

sure of information where disclo-

sure is ‘not authorized by law,'

would not permit the withholding

of information otherwise required

to be disclosed by the Freedom of

Information Act, since the dis-

closure is there authorized by

law. Thus, for example, if

material did not come within the

broad trade secrets exemption

contained in the Freedom of

Information Act, section 1905

would not justify withholding..."

(emphasis supplied).

18r+ is possible that the Fourth

Circuit did not consider the new legis-

lation because the provisions did not

take effect until March 13, 1977. In

that case, its ruling has no preceden-

tial value at this time, and is not

appropriate for consideration by this

Court.

20

District of Columbia Circuit, on the

other hand, has reconsidered its earlier

decisions that §1905 is not within

exemption (b) (3) in light of the recent

amendments, and has determined that, a

fortiori, §1905 is not covered by exemp-

tion (b) (3). See National Parks and

Conservation Assn. v. Kleppe, 547 F.2d

673, 678 (D.C. Cir. ig7é)~ Until the

Fourth Circuit considers whether the

recent FOIA amendment changes its

ruling,19 and until other Circuits have

considered the affect of the new law on

the scope of exemption (b) (3), consid-

eration by this Court of any "conflict"

in the Circuits is clearly premature.

CONCLUSION

For all the foregoing reasons, the

Petition for Certiorari should be denied.

19 petitioners have suggested that

the Government should have asked the

Fourth Circuit to review Westinghouse

in light of the FOIA amendments, rather

than petitioning this Court for cer-

tiorari in that case. See Prudential

Response to Stay Opposition, at pp. 4-5,

n. 2. The failure of the Government to

take that course makes it all the more

inappropriate for this Court to con-

sider the matter before the Fourth

Circuit has had an opportunity to re-

consider its ruling in Westinghouse or

another case in light of the 1976 FOIA

amendments.

a i

21

Respectfully submitted,

LOIS J. SCHIFFER

MARGARET A. KOHN

Women's Rights Project

Center for Law and Social Policy

1751 N Street, N.W.

Washington, D.C. 20036

COLLOT GUERARD

Media Access Project

1912 N Street, N.W.

Washington, D.C. 20036

Attorneys for Respondent

National Organization for Women,

Washington, D.C. Chapter

OF COUNSEL:

Judith Lichtman

Women's Legal Defense Fund, Inc.

1424 16th Street, N.W.

Washington, D.C. 20036

March 30, 1977