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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 924

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1297%3A4. Public record. Not legal advice.