Appendix — GTE Sylvania, Inc. v. Consumers Union of the United States, Inc.

) oct g 1977

Supreme Court of the United States

October Term, 1977.

No. 07-5080

GTE SYLVANIA, INCORPORATED,

RCA CORPORATION,

THE MAGNAVOX COMPANY,

ZENITH RADIO CORPORATION,

MOTOROLA, INC.,

WARWICK ELECTRONICS, INC.,

AERONUTRONIC FORD CORPORATION,

MATSUSHITA ELECTRIC CORPORATION OF AMERICA,

SHARP ELECTRONIC CORPORATION,

TOSHIBA-AMERICA, INC.,

GENERAL ELECTRIC COMPANY,

ADMIRAL CORPORATION,

Petitioners,

0.

CONSUMERS UNION OF THE UNITED STATES, INC.,

PUBLIC CITIZEN’S HEALTH RESEARCH GROUP,

CONSUMER PRODUCT SAFETY COMMISSION,

RICHARD O. SIMPSON,

BARBARA H. FRANKLIN,

LAWRENCE KUSHNER,

CONSTANCE NEWMAN,

R. DAVID PITTLE,

SADYE DUNN,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT.

Bernarp G. SEGAL,

CuHarzes C. ncahio. ITI,

DEENA Jo SCHNEIDER,

Schnader, Harrison, Segal & Lewis,

1719 Packard Building,

Philadelphia, Pennsylvania 19102,

Attorneys for RCA Corporation.

[Names of Other Counsel on Inside Front Cover]

international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

Harry L. SHNIDERMAN,

James M. McHaney, Jr.,

Covington & Burling,

888 16th Street, N.W.,

Washington, D.C. 20006,

Attorneys for GTE Sylvania,

Incorporated and Aeronutronic

Ford Corporation.

STEPHEN B. CLARKSON,

Sullivan, Beauregard, Clarkson, Moss

& Brown,

1800 M Street, N.W.,

Washington, D.C. 20036,

Attorneys for The M

Company and Zenith Radio

Corporation.

Wa ter T. KuHiMey,

Kirkland & Ellis,

200 E. Randolph Drive,

Chicago, Illinois 60601,

Attorneys for Motorola, Inc.

WituraM F. Patren,

D. Cuiirrorp Crook, III,

Wilkes & Artis,

1666 K Street, N.W., Suite 608,

Washington, D.C. 20006,

Atioonays for Warwick Electronics,

ne.

Burton Y. WEITZENFELD,

MICHAEL A. STIEGEL,

Arnstein, Gluck, Weitzenfeld

& Minow,

75th Floor, Sears Tower,

Chicago, Llinois 60606,

Attomnays for Warwick Electronics,

1.

Ina M. MILLSTEIN,

Nancy L. Buc,

Weil, Gotshal & Manges,

767 Fifth Avenue,

New York, New York 10022,

Attorneys for Matsushita Electric

Corporation of America.

Perer GARTLAND,

J. Portis Hicxs,

Wender, Murase & White,

400 Park Avenue,

New York, New York 10022,

Attorneys for Sharp Electronic

Corporation.

LAWRENCE R. WALDERS,

Tanaka, Walders & Ritger,

1819 H Street, N.W.,

Washington, D.C. 20006,

Attorneys for Toshiba-America, Inc.

Rosert W. STEELE,

ALAN M. GRIMALDI,

Howrey & Simon,

1730 Pennsylvania Avenue, N.W.,

Washington, D.C. 20006,

Attorneys for General Electric

Company.

. WALLACE ADAIR,

owrey & Simon,

1730 Pennsylvania Avenue, N.W.,

Washington, D.C. 20006,

Attorneys for Admiral Corporation.

oo

INDEX TO APPENDIX.

Page

Opinion of the Court of Appeals ...........0-.eeeeeeeeees la

Joint Petition of Aeronutronic Ford et al. for Rehearing .... 17a

Joint Petition of Admiral et al. for Rehearing .............- 29a

RCA Corporation’s Petition for Rehearing ..............-. 4la

Government's Petition for Rehearing .............+.000s005 52a

Response to Petitions for Rehearing .............++++++0+: 67a

Order of the Court of Appeals Denying Rehearing ......... 7la

Order of the Court of Appeals Denying Rehearing En Banc 74a

Opinion of the District of Columbia District Court ......... 75a

Order of the District of Columbia District Court .......... 86a

Opinion of the Delaware District Court Granting Preliminary

| MPPPETTTITITECETT TLE TLL ELEC 88a

Preliminary Injunction Entered by the Delaware District

NE vicincccnninesccensdetekeceben¥nencéceseceeccee 124a

Minute Order Entered by the Delaware District Court ..... 127a

Opinion of the Delaware District Court Denying Motions to

SE. ccccucdd upecddecvaceecegsevvesdcetseesedeen 128a

_Order of the Delaware District Court Denying Motions to

: EE sc dh doc dcncdussedescueepenebeapetecsegnanns 137a

fe th a sti <i i th

APPENDIX.

UNITED STATES COURT OF APPEALS

For THE District or CoLumsBia Ciacuir

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

Before: BazeLon, Chief Judge, and WricHT AND Rosinson,

Circuit Judges. |

Argued September 21, 1976

Decided July 5, 1977

Opinion for the court filed by Circuit Judge Wricur.

Waricut, Circuit Judge: We consider here an appeal

from a dismissal of an action brought by the appellants

under the Freedom of Information Act (FOIA), 5 U. S. C.

§ 552 (1970 & Supp. V 1975). They seek to obtain, from

the Consumer Product Safety Commission, reports which

various television manufacturers have submitted on tele-

vision-related accidents.

For the reasons stated below, we reverse the District

Court’s dismissal of the plaintiffs’ action and remand the

case for further proceedings.

(1a)

2a Opinion of the Court of Appeals

I. THe PARTIES

Appellant Consumers Union is a nonprofit consumer

organization. It provides information—through its monthly

magazine Consumer Reports and through other means—on

the merits, defects, dangers, and comparative efficacy of

consumer goods, including television sets. Appellant Pub-

lic Citizen, also a nonprofit organization, funds the Health

Research Group which conducts research and publishes

information for consumers relating to potential hazards to

health and safety from consumer products.

Appellee Consumer Product Safety Commission is an

independent regulatory agency established by Congress in

1972 pursuant to its enactment of the Consumer Product

Safety Act, 15 U. S. C. § 2051 et seq. (Supp. V 1975).

The Commission’s purpose is to help implement the Act's

policy of establishing “comprehensive and effective regu-

lation over the safety of unreasonably hazardous con-

sumer products.” Several of the officers of the Commis-

sion and 12 companies that manufacture television sets

and do business in the District of Columbia were, together

with the Commission, also named as defendants below

and are also appellees before this court.

1. H. R. Rep. No. 1153, 92d Cong., 2d Sess. 26 (1972). The

purposes of the Act are:

(1) to protect the public against unreasonable risks of in-

jury associated with consumer products;

(2) to assist consumers in evaluating the comparative

safety of consumer products;

(3) to develop uniform safety standards for consumer

products and to minimize conflicting state and local regula-

tions; and

(4) to promote research and investigation into the causes

and prevention of product-related deaths, i!lnesses, and injuries.

15 U. S. C. § 2051(b) (Supp. V 1975).

Opinion of the Court of Appeals 3a

II. Backcrounp

The background of the present impasse is extensive

and, in some respects, complex. In March 1974 the Com-

mission issued a public notice *? announcing that it would

hold a public hearing to investigate hazards encountered

during operation of television receivers and to consider

the necessity of developing safety standards for such re-

ceivers. In the notice the Commission requested certain

technical information and data on television-related acci-

dents from manufacturers of television sets and component

parts. In particular the Commission requested that the

manufacturers submit all accident reports collected since

the National Commission on Product Safety held hearings

on the subject in 1969.* Although a few manufacturers

complied with the Commission’s request, the principal re-

sponse consisted of a six-page summary of accident data

supplied by the Electronics Industry Association (EIA).

After reviewing the data voluntarily submitted, the

Commission concluded that the “information submitted to

the Commission by the EIA on behalf of the [companies

did] not satisfy the Commission’s request.”* Accordingly,

on May 13, 1974 the Commission, acting pursuant to 15

U. S. C. § 2076(b)(1) (Supp. V 1975), sent special or-

ders to 25 manufacturers seeking specified information.

In the cover letter accompanying the special orders the

Commission noted the possibility of a request for public

access to this information via the FOIA, and the manu-

2. 39 Fen. Rec. 10929 (March 22, 1974).

3. Id. |

4. E.g., Special Order of the Commission to General Electric

Comneme, Docket Item 11A, Ex. A-l, in Civil Action (CA) No.

75-136 (D. Del.).

5. Of the appellee manufacturers here, apparently only RCA

did not receive a order. GTE Sylvania Inc. v. Consumer

Product Safety Com’n, 404 F. Supp. 352, 458 n. 11 (D. Del. 1975).

4a Opinion of the Court of Appeals

facturers were instructed to identify data claimed to be

exempt from public disclosure and to substantiate any

such claims. Claims of confidentiality accompanied the

responses of most manufacturers. Again the Commission

reviewed the submitted data and again the Commission

found that certain of the manufacturers had not complied

with the request. Thus on July 26, 1974 supoenas [sic]

duces tecum were issued to the appellee manufacturers

and three other manufacturers * requiring production of

specified technical information and all television-related

accident data.

Appellants’ first request for access, under the FOIA,

to data submitted by the manufacturers was in June 1974

and pertained to the documents submitted in response to

the Commission’s special orders of the previous month.’

Although appellants were given access to those reports for

which c iidentiality was not claimed by the manufac-

turers, they were not allowed access to documents which

the manufacturers claimed were exempt from the FOLA.*

Instead, in August 1974 the Commission informed the

manufacturers of appellants’ FOIA request and again di-

rected the manufacturers to substantiate their claims of

confidentiality. The Commission also extended appellants’

FOIA request to the additional data which the Commis-

sion later subpoenaed from the manufacturers.’

Klecwronion Pv ing Dery ~ oo = Shas mr

ublic disclosure of data they forwarded to the Commission. Evi-

tly the Commission did not order all manufacturers of television

sets sold in this country to submit accident reports. GTE Sylvania

Inc. v. Consumer Product Safety Com’n, supra note 5, 404 F. Supp.

at 359 n. 18.

7. Consumers Union of United States v. Consumer Product

Safety Com’n, 400 F. Supp. 848, 850 (D. D. C. 1975).

8. Id.

9. Id.

Opinion of the Court of Appeals 5a

Appellants subsequently limited their request to ex-

clude documents protected by the attorney-client privilege

or the work product doctrine and those portions of docu-

ments that contained names and addresses of accident

victims. Even with this limitation, however, appellants’

request went unfulfilled.*° In October 1974, therefore,

four months after their initial request, appellants informed

the Commission that they would consider any further

delay to be a denial. As a result of that communication,

representatives of appellants and the Commission met in

November 1974 and agreed upon a timetable for comple-

tion of the Commission’s review of the manufacturers’

submissions. It was estimated that the Commission’s legal

determination as to availability of the requested docu-

ments would be completed by mid-March of 1975. Appel-

lants acquiesced in that timetable, but expressly reserved

the right to consider additional delay as a denial of their

request.”

On March 28, 1975—nine months after appellants’

initial request—the Commission issued its legal determi-

nation that the documents requested by appellants did

not fall within the exemptions of the FOIA. It also stated

that, even if the data were exempt from mandatory dis-

closure, disclosure by the Commission was nonetheless

within its discretion and, in this case, appropriate in the

interest of public health and safety."* The Commission

subsequently notified the television manufacturers of its

decision to release the requested documents on May 1,

1975. After receiving that notice, seven of the manufac-

turers filed separate actions against the Commission in the

United States District Court for the District of Delaware,

10. Id.

11. Id.

12. Id.

6a Opinion of the Court of Appeals

each seeking an injunction prohibiting disclosure on the

ground that release of the documents is barred by the

exemptions to the FOIA and certain portions of the Con-

sumer Product Safety Act, 15 U. S. C. §2051 et seq.

(Supp. V 1975).* Five other television manufacturers

filed similar separate actions in the United States District

Court for the Southern District of New York,"* the United

States District Court for the Northern District of New

York,” and the United States District Court for the

Western District of Pennsylvania.”* In all of the actions

the manufacturers applied for temporary restraining orders

prohibiting release of the documents pending determina-

tion of their motions for preliminary injunctions. The

Commission consented to the temporary restraining orders

in at least some of the cases."” Subsequently the indi-

vidual actions filed by the television manufacturers were

consolidated in the District of Delaware.** Even though

13. The following manufacturers filed actions in the District of

Delaware: GTE Sylvania (CA No. 75-104), RCA (CA No. 75-108),

lc (CA No. 75-112), Zenith (CA No. 75-113), Motoro

M

(CA No. 7§-114), Warwick (CA No. 75-115), and Aeronutronic

Ford (CA No. 75-116).

14. Matushita (CA No. 75-2040), Sharp (CA No. 75-2049),

~ 7 Sere ( CA No. 75-2050) filed actions in the Southern District

ew

15. General Electric (75-CV-189) filed suit in the Northern

District of New York.

16. Admiral (CA No. 75-531) filed suit in the Western District

of Pennsylvania.

17. Appellants claimed below that the Commission consented

to the orders in all of the cases, while the Commission claimed it

consented to some but not all of the orders. For of the

motion to dismiss, the District Court below accepted appellants’

allegations as true. Memorandum Opinion, supra note 7, at 5.

Because our ition on appeal does not turn on the number of

orders that the ission consented to, we do not feel it neces-

sary to resolve the issue here or to remand it to the District Court.

18. GTE Sylvania Inc. v. Consumer Product Safety Com’n,

supra note 5.

Opinion of the Court of Appeals Ta

Rule 65(b) of the Federal Rules of Civil Procedure has

been held to limit the duration of temporary restraining

orders to a total of 20 days, absent consent by the party

against whom the order was directed, Sims v. Greene,

160 F. 2d 512, 516 (3d Cir. 1947), the Commission did

not object to requests for further extensions of the tem-

porary restraining orders, with the result that oral argu-

ment on the manufacturers’ preliminary injunction mo-

tions was not heard until July 23, and the stays against

the Commission’s releasing the information continued until

those motions were decided. A preliminary injunction,

which the Commission did oppose, was entered on

October 23, 1975, prohibiting production of the data.”

For whatever reason, the appellants did not seek to inter-

vene in this action either to contest the manufacturers in

Delaware or to have the action transferred to the District

of Columbia. And despite full awareness of appellants’

requests for access to the documents, neither the manu-

facturers nor the Commission even attempted to include

appellants as parties or to transfer the cases to the District

of Columbia where appellants could readily Be joined.

Furthermore, though the submissions by the Commission

in Delaware plainly put that court on notice of the interest

of appellants in release of the documents, the court did

not on its own motion inquire about the necessity of join-

ing appellants under Rule 19, Fen. R. Cw. P.

After the District Court for the District of Delaware

entered the preliminary injunction, the Commission filed

an interlocutory appeal. The Commission subsequently

filed a voluntary motion for dismissal of the appeal, how-

ever, and on May 10, 1976 the motion was granted.”

19. Id.

20. The Commission’s motion is on file with the clerk of the

Third Circuit, Docket Nos. 76-1095~—76-1107.

8a Opinion of the Court of Appeals

On August 20, 1976 the District Court “closed out” the

case with no further action planned.

III. THe Decision BELOW

The instant FOIA litigation was filed in the District

Court for the District of Columbia on May 5, 1975 and

appellants promptly moved for summary judgment. The

Commission and the manufacturers, however, moved to

dismiss this action on the ground that no case or contro-

versy existed between appellants and the Commission or,

in the alternative, to stay the proceedings pending the

decision in Delaware.

Four months later and 15 months after appellants

initially asked the Commission for access to the docu-

ments, the District Court, without oral argument, filed

an opinion and entered an order dismissing the action.”

The District Court concluded that between appellants and

the Commission there was no case or controversy since

“on the crucial issue in this case’—the claim that the

documents are subject to mandatory disclosure under the

FOIA—appellants and the Commission “came to the exact

same conclusion”: that the documents had to be dis-

closed. The only reason the Commission was not dis-

closing the documents, according to the court, was that

it was prevented from doing so—first by the several tem-

porary restraining orders and then by the preliminary

injunction issued by the District Court for the District

of Delaware. The court further concluded that, between

21. Consumers Union of United States v. Consumer Product

Safety Com'n, supra note 7.

22. Id., 400 F. Supp. at 851. This most definitely is not, how-

ever, “a situation in which [the Government] confesses error and

represents that the error will be corrected wi need for further

court action.” Goosby v. Osser, 409 U. S. 512, 516 n. 4 (1973), and

cases cited therein.

Opinion of the Court of Appeals 9a

appellants and the manufacturers, there was a failure

to state a claim upon which relief could be granted.”

IV. Tue Issues ON APPEAL

We conclude that the District Court erred, and that

there is a case or controversy™ between appellants and

the Commission. At its narrowest compass the case or

controversy to be resolved concerns the threshold ques-

tion of the scope and effect of the proceedings in Dela-

ware. The Commission, echoed by the manufacturers,

renews on appeal its argument—accepted by the District

Court—that, although it would like to provide appellants

with the requested documents, the preliminary injunction

entered by the Delaware District Court unequivocally

precludes it from doing so. Appellants disagree and

deny that the preliminary injunction entered in Delaware

absolves the Commission of what they believe is the

Commissicn’s statutory duty to furnish the requested

documents.

This substantial and extensively argued disagreement

among the parties to this action fully satisfies the Article

III case or controversy requirement.” The scope and

23. Consumers Union of United States v. Consumer Product

Safety Com’n, supra note 7, 400 F. Supp. at 853.

: 24. “The term ‘controversies,’ if distin ishable at all from

cases, is so in that it is less comprehensive the latter, and in-

cludes suits of a civil nature.” In re P. Railway Com-

gta SL Th NS Me

- J), ns. Co. vo. Haworth, . od. ;

238 (i ).

25. In his opinion in Aetna Life Ins. Co. v. Haworth, supra

note 24, Chief Justice Hughes provided a now classic explanation

of the

A “controversy” in this sense must be one that is appro-

Gloria peiched from nation. A justicable controversy i

a or dispute of a hypotheti-

cal or abstract character; from one that is academic or moot.

10a Opinion of the Court of Appeals

effect of a prior judgment are always legitimate subjects

of argument and resolution in a subsequent action,” and

the judgment entered by the Delaware District Court

suggests no reason why it should be considered an

exception.

Moreover, the Commission’s conduct of the Delaware

litigation provides a second, independent reason for reject-

ing appellees’ contention that a case or controversy is

lacking. In fact, reviewing both the administrative and

litigational prelude to the instant appeal, the Commis-

sion’s conduct, in several instances, is not easily reconcil-

able with its ostensible acceptance of appellants’ argument

that the requested documents should be disclosed.” On

25. (Cont'd. )

The controversy must be definite and concrete, touching the

legal relations of parties having adverse legal interests. It must

be a real and substantial controversy admitting of ific relief

through a decree of a conclusive character, as disti guished

from an opinion advising what the law would be upon a hypo-

thetical state of facts. ° ° °

300 U. S. at 240-241 (citations omitted ).

26. See RESTATEMENT (SECOND) OF JupDGMENTS § 68 (Tent.

Draft No. 1, 1973); Advisory Committee Note, 39 F. R. D. 69, 106

1966), citing RESTATEMENT OF JUDGMENTS § 68, comment i

116 (1942); F. James, Crvm. PRocEDURE ; 11.5, at 534-535 (1965);

B J. Moore, Feperar Practice { 0.441[1] at 3772-3773 (Moore &

Currier ed. 1974), quoting Cromwell v. County of Sac, 94 U. S. (4

Otto) 351, 352-353 1877). See also, e.g., Hansberry v. Lee, 311

U. S. 32, 40-41 (1940); Gonzales v. Cassidy, 474 F. 2d 67, 72 (Sth

Cir. 1973); Research Corp. v. Edward J. Funk & Sons, Co., 15 F. R.

Serv. 2d 580 (N. D. Ind. 1971).

We take it to be established beyond cavil that, “[i]nsofar as

the ° ° ° judge may have rested his finding of the absence of a

case or controversy on the alleged difficulty of formulating a

remedy, he also erred.” Goosby v. Osser, supra note 22, 409 U. S.

at 517 n. 5, citing Louisiana v. United States, 380 U. S. 145, 154

(1965); Brown v. Board of Education, 349 U. S. 294, 300 (1955).

27. For example, despite the time limits imposed on agencies

which receive FO my om 5 U.S. C. § 552(6) (1970), the Com-

mission took nine months from the date of appellants’ initial request

Opinion of the Court of Appeals lla

the basis of this record, we cannot believe that the Com-

maission and the appellants lack the degree of adverseness

— under the Constitution.

existence of a case or controversy having been

established, we must next consider its merits. That is, we

~ 27. (Cont'd. )

the documents to issue its determination that the documents

could legally be released. See p. 7 supra. Even more “curious”

{to borrow the description of the District Court below) is the fact

the Commission, “having just completed a nine-month legal

inv tion which led to the conclusion that the documents were

available under the FOIA, failed to make even a pro forma opposi-

tion to the motions for ing order.” Consumers Union

object to requests for further extensions. See . 8 supra.

pat It is | agp the temporary restraining aden were eventually

rae joy & p aay 5g y74 issuance of which was con-

Romany squat from the preli injunction. As recounted

above, however, soon after Blin the aneal snlesion .

filed a motion to have the appeal ion ped word

this appeal is taken. )

PR. om therefore, the prolonged delay and current legal

action. Of course, absent lack of candor or other triflin

court by the parties, questionable and even clearly Slaaw one

rdinarily

court. See, eg., Link v. Weber R. Co., 370 U. S. 626,

so). However, the nature of the manufacturers’ suit in

yar nd, its Possible effect on Consumers Union and

FOIA plaintiffs require this court to pay closer than

to the general background of this dispute and to the overall

12a Opinion of the Court of Appeals

must consider whether the Commission and the manufac-

turers or, alternatively, the appellants are correct in their

assessment of the legal effect on this action of the Dela-

ware judgment. At first glance appellees’ position seems

strong. The Delaware District Court preliminarily en-

joined the Commission from releasing the contested docu-

ments, and that injunction has not been modified in any

manner. It would thus appear that appellants’ request

may indeed be foreclosed.

Yet the correctness of this conclusion, toward which

the Commission and the manufacturers urge us so enthu-

siastically, is not nearly as obvious as they would have us

believe. The procedural history of the Delaware proceed-

ing—as adduced by the District Court, as well as in the

appellate briefs and at oral argument—is troubling and

belies the apparent soundness of appellees’ position. There

is, first, the obvious and important fact that the Delaware

District Court never did resolve the merits of the manu-

facturers’ claim that the contested documents should not

be released. Rather, the court limited itself to preliminary

enjoining the Commsision from releasing the documents

in dispute.* The opinion accompanying the injunctive

order unmistakably confined itself to the propriety of relief

pendente lite.” An order of that type is only “a conserva-

tive measure intended * * ° to save all rights until the

merits of the controversy can be definitely ascertained

°° ° It is not an adjudication of rights in any proper

sense of the term ° ° * [and] it does not follow that the

28. GTE Sylvania, Inc. v. Consumer Product Safety Com'n,

supra note 5, 404 F. Supp. at 375.

29. The Delaware court found that irreparable harm would

attend disclosure of the documents, 404 F. Supp. at 375, and that

the manufacturers had presented a “prima facie case showing a

reasonable probability” that divulgence would be unlawful. Id. at

369, quoting Oburn v. Shapp, 521 F. 2d 142, 148 (3d Cir. 1975).

Opinion of the Court of Appeals 13a

final adjudication will be in accordance with the inter-

locutory order.” *°

Standing alone the preliminary injunction, despite its

impact on the agency, could not bar the FOIA action insti-

tuted by appellants in the District of Columbia. It would,

of course, weigh heavily in any decision as to which of the

two suits ought, “giving regard to conservation of judicial

resources and comprehensive disposition of litigation,” ™

to be stayed or enjoined pending the outcome of the

other.” Here, however, there is no occasion to engage in

the balancing that would ordinarily attend such a situa-

tion, for nearly a year after entry of the preliminary in-

junction the Delaware court entered an order “closing out”

the case with no further action planned.

While the “close-out” language employed by the Dela-

ware court finds no parallel in either that court’s rules or

the Federal Rules of Civil Procedures [sic], it does evince

an understanding—apparently shared by the parties before

it—that the suit had run its course. No one implies that any

intervening determination on the merits has converted the

interlocutory relief into a permanent injunction; ® such

30. Unite

6 App. D. C. “B98, BAA (1808). nee. 2,, Metropolitan Club,

Wisconsin Telephone Co., 289 U. S. 67, 70 (1933): Industrial

of Washington v. Tobriner, 405 F. 2d 1321, 394 D. C. Cir. 1968),

31. Kerotest Mfg. Co. v. C-O-Two Fire Equi

v. S. 180, 183 (1952). Cf. Columbia Plaza Cows Same

econ Bank, 525 F. 2d 620, 627 (D. C. Cir. 1 5). See also

olorado River Water Conservation Dist. v. United States, 424 U.S

800, 817 3.008 and cases cited therein; 2 J. Moore, FEDERAL

Practice { 3.06[2] at 736-739 (Moore & Lucas ed. 1975).

32. See, e.g., Kerotest Mfg. Co. v. C-O-Two Fi ipment

Co., supra note 31, 342 U. S. at 183-184; Columbia Plaza'Conp v

Security National Bank, supra note 31, 525 F. 2d at 627-628,

33. Neither does anyone contend that the hearing on prelimi-

nary relief was sub silentio consolidated with a hearin

merits. See Rule 65(a)(2), Fep. R. Civ. P. i ae raph

tures placed upon such a practice, that is not surprising. See, e¢.g.,

l4a Opinion of the Court of Appeals

other possible interpretations of the Delaware court's

order as suggest themselves tend toward the conclusion

that, although the reverse FOIA action was not dismissed

in form, it was dismissed in fact, and by acquiescence of

the parties the matter was dropped.

With that, the preliminary injunction is dead.”

When there is no prospect of an adjudication of the merits,

relief that purports to be temporary, pending such an

adjudication, is obviously superfluous. Whether this “clos-

ing out” acknowledges an informal—or even tacit— “settle-

ment” between the Delaware plaintiffs and the Commis-

sion we need not inquire, since if it did such a settlement

would be void as against public policy. Thus the pre-

liminary injunction need hardly be considered an insuper-

able barrier to the suit at bar.

Besides the absence of a disposition on the merits, the

Commission’s conduct of the Delaware litigation is a sec-

ond factor that makes us reluctant to accept, without more,

33. (Cont'd. )

Brooks v. Nacrelli, 415 F. 2d 272,275 (3d Cir. 1969), on remand,

331 F. a 1350 (E. D. Pa. 1971), d, 473 F. 955 (3d Cir.

1973); Willits v. bidedon 497 F. 2d 240, 244 (5th Cir. 1974);

Pu hsle v. 3750 Lake Shore Drive Cooperative Building, 463 F. 2d

1 (7th Cir. 1 oe Dry Creek dee, Inc. v. United States,

515 r. 2d 926, 935 Cir. 1975). But cf. Fenstermacher v.

Philadelphia Nati Bank, 493 F. 24 333, 337 (3d Cir. 1974); Eli

Lilly & Co. v. Generix Drug Sales, Inc., 460 F. 2d 1096, 1106 (5th

Cir. 1972).

34. See, e. $ Wickes Corp. v. Industrial Financial Corp., 493

F. 2d 1173, 1176 (5th Cir. 1974): Rio Hondo Harvesting orp. v.

Johnson, 293 F. 2d 426, © (me & 1961); Heasley v. United

States, 312 F. 2d 641, 648-649 (8th Cir. 1963); ’ Sweeney v. Hanle

126 F. 97, 99 (9th Cir. 1903), cert. denied, 193 U. S. 671 (19045.

Cf. 11 C. ‘WaricuT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE

2948 at 427 os 7 J. Moore, FeperaAt Practice { 65.07 at 65-

(Moore & Lucas ed. 1975). See also United States v. Profes-

sonal my Controllers Organization, 449 F. 2d 1299, 1300 (3d

ir

35. Cf. Petkas v. Staats, 501 F. 2d 887 (D. C. Cir. 1974).

et anal twee

|

|

Opinion of the Court of Appeals 15a

the contention that the Delaware proceedings preclude

appellants’ suit here. As described above,” the Commis-

sion was, in several respects, less than vigilant in espous-

ing its putative view that the requested documents should

be disclosed.

Yet another, related reason for declining to give the

Delaware judgment the preemptive effect that appellees

argue it deserves is the absence from the Delaware pro-

ceedings of any party requesting disclosure. Not only

were the appellants in this case not participants in that

suit, neither was any other private party besides the manu-

facturers. Given the Government's peculiar approach to

those proceedings, therefore, the pro-disclosure position

was all but unrepresented. This important consideration

further attenuates any claim that the preliminary injunc-

tion is binding on appellants here.

V. CONCLUSION

Accordingly, we remand this case to the District Court

for the District of Columbia.’ The issue on remand will

be, quite simply, whether or not the documents should

in fact be disclosed. In resolving this issue the District

Court for the District of Columbia offers a peculiarly ap-

propriate forum. The party that possesses the requested

information (i.e., the Commission), the parties that re-

quested the information (Consumers Union and Public

36. See pp. 12-13 & note 27 supra.

37. Jurisdiction in the District Court is predicated on 5 U. S. C.

$552(a)(4)(B) (Supp. V 1975), which provides that under the

complaint, the district court of the United States in the

py a ich the complainant resides, or has his principal

place of business, or in w ich the agency records are situated,

or in my Ae coe Be peri has ae | oe oe

agency wi agency records improperly wi

con the complainant. ° ° .

16a Opinion of the Court of Appeals

Citizens), and the parties that supplied the information

(the manufacturers) are all joined in the suit and are

ready to present their respective views on the merits. We

find no constitutional or procedural bar to adjudication.

Reversed and remanded.

Joint Petition of Aeronutronic Ford

et al. for Rehearing 17a

IN THE

UNITED STATES COURT OF APPEALS

For THE Districr or Co_umsBiA Crirculr

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

JOINT PETITION OF DEFENDANTS-APPELLEES

AERONUTRONIC FORD CORPORATION, GTE SYL-

VANIA INCORPORATED, THE MAGNAVOX COM-

PANY, MATSUSHITA ELECTRIC CORPORATION OF

AMERICA, TOSHIBA-AMERICA, INC., AND ZENITH

RADIO CORPORATION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

Defendants-Appellees Aeronutronic Ford Corpora-

tion (now Ford Aerospace & Communications Corporation

by change of name effective December 1, 1976), GTE

Sylvania Incorporated, The Magnavox Company, Matsu-

shita Electric Corporation of America, Toshiba-America,

Inc., and Zenith Radio Corporation hereby petition for

rehearing, and suggest the appropriateness of rehearing

en banc, of the decision in this case filed July 5, 1977.

I. Concise Statement of Issue and

Its Importance.

Whether it is proper for this Court to create a “case

or controversy” that does not exist by erroneously con-

Joint Petition of Aeronutronic Ford

18a et al. for Rehearing

cluding that a preliminary injunction issued by the United

States District Court for the District of Delaware is no

longer outstanding, a position espoused by no party, in

disregard of normal principles of comity and sound ad-

ministration of justice. Whether it is proper to reach this

conclusion, which in effect attempts to vacate an injunction

of a district court in another circuit, on the basis of an

administrative order entered by the Delaware court solely

for statistical purposes, without having in the record the

text of the administrative order or any other evidence in

the record pertaining to the purpose and effect of the

administrative order.

II. Statement of Case.

A. Procedural Summary.

The complaint in this case was filed on May 5, 1975

by Consumers Union of the United States, Inc., and Pub-

lic Citizen’s Health Research Group (“plaintiffs”) seeking

an order directing the Consumer Product Safety Commis-

sion (“CPSC”) to disclose under the Freedom of Informa-

tion Act (“FOIA”) approximately 120,000 pages of “TV-

related accident data” obtained by the CPSC from a

number of television manufacturers. Twelve manufac-

turers were joined with the CPSC as defendants. On Sep-

tember 5, 1975, Judge Richey granted motions by the de-

fendants to dismiss. As to the CPSC, he held that the

complaint presented no “case or controversy”, and as to

the manufacturers, he held that the complaint failed to

state a claim upon which relief could be granted. An

appeal of Judge Richey’s order of dismissal followed and

on July 5, 1977, a panel of this Court reversed Judge

Richey’s order.

Joint Petition of Aeronutronic Ford

et al. for Rehearing 19a

B. Factual Background.

On March 28, 1975, the CPSC announced that it

would release certain documents requested by the plain-

tiffs under the FOIA. These documents, which had been

submitted to the CPSC by the appellee manufacturers,

contained data concerning television related accidents.

After receiving notice that the CPSC would release the

requested documents, seven of the manufacturers filed

separate actions against the CPSC in the United States

District Court for the District of Delaware seeking to pro-

hibit disclosure on the ground that release of the docu-

ments was barred by exemptions to the FOIA and certain

portions of the Consumer Product Safety Act, 15 U. S. C.

§ 2051 et seq. (Supp. V 1975). Five other manufacturers

filed similar actions in the United States District Court for

the Southern District of New York, the United States Dis-

trict Court for the Northern District of New York, and the

United States District Court for the Western District of

Pennsylvania. In all the actions, the manufacturers ob-

tained temporary restraining orders prohibiting release of

the documents pending determination of their motions for

preliminary injunction.’ Subsequently, all of the indi-

Ww Elec. . v. Schlesing: F. Supp. 1246,

(E. D. Va. 1974). Mn ay pen ye s decision

not to oppose extension of the temporary restraining orders is no

er

issue in view of Latchum’ injunction

7 Gescber 25 1078 which es ectered over vigorous opposition

of the CPSC.

Joint Petition of Aeronutronic Ford

20a et al. for Rehearing

vidual actions were consolidated by transfer to the District

of Delaware before Chief Judge James L. Latchum.

Oral argument on the manufacturers’ preliminary in-

junction motions was heard by Judge Latchum on July 23,

1975. The restraining orders against the CPSC’s releasing

the documents continued until October 23, 1975, when the

court issued a preliminary injunction prohibiting dis-

closure of the data. Judge Latchum’s order was supported

by a reasoned and detailed 56-page opinion. 404 F. Supp.

352 (D. Del. 1975). After Judge Latchum entered the

preliminary injunction, the CPSC filed an interlocutory

appeal which subsequently was dismissed on its own

motion.”

On August 20, 1976, Judge Latchum entered an order

instructing the Clerk “to submit a JS-6 form to the Ad-

ministrative Office and close these cases for statistical pur-

poses.” (Emphasis supplied). The Order specifically

noted that “nothing contained herein shall be considered a

dismissal or disposition of the matter.” (Emphasis sup-

plied). (A copy of this Order can be found at pages A-1

through A-5 in the Appendix accompanying this petition. ) *

Shortly after the commencement of the Delaware ac-

tion, plaintiffs initiated the instant litigation in the United

2. While the reasons for this volun dismissal can best be

stated by the CPSC, we cannot help but believe that this action

volumes as to the stren our case on the merits—lead-

ing to frantic forum shopping by appellants and urgent searchin

for precedent in another pending case in the Western District o

New York by the CPSC.

3. Since the panel felt that the status of the prelimi injunc-

tion in the Delaware District was the material out of which a “case

or controversy” could be woven, we are surprised that the panel

proceeded to “consider its merits” (Slip >. p. = The = did

osing case

at Nae the Delaware oe order - ore it.

I accompan Appendix serves no other purpose, we respect-

submit it does show why the panel after a summary hearin

an eiibous ¢ Semel beds suadhel on eneneues Gentian as t

the status of the Delaware case.

~

Joint Petition of Aeronutronic Ford

et al. for Rehearing 2la

States District Court for the District of Columbia against

the CPSC and the manufacturers. The complaint sought

release of the documents which plaintiffs previously had

requested under the FOIA and which were the subject of

the Delaware action. Plaintiffs claimed that the CPSC’s

failure to release the requested documents constituted a

violation of the CPSC’s duty to promptly produce docu-

ments once it had decided that the documents should be

released. The complaint noted that release of the re-

quested materials already had been enjoined by Judge

Latchum, but contrary to the panel’s view, the complaint

did not seek to litigate the validity or legal effect of the

temporary restraining order. Recognizing that the CPSC

agreed with plaintiffs’ position that the documents should

be released, but that the CPSC was prohibited from doing

so by the Delaware restraining order, Judge Richey dis-

missed the complaint on the ground that no “case or

controversy” existed between the CPSC and plaintiffs.

400 F. Supp. 848. The core of Judge Richey’s ruling is

set forth as follows.

“At the heart of plaintiffs’ claim is their contention

that the documents are subject to mandatory dis-

closure under the FOIA. The defendant agency,

however, came to the exact same conclusion in its

above-mentioned formal finding on March 28, 1975.

The CPSC and the plaintiffs thus stand in the same

position on the crucial issue in this case.”

400 F. Supp. at 851.

Moreover, Judge Richey recognized that considerations of

deference and comity mandated that the plaintiffs’ action

be dismissed.

“In essence, what the plaintiffs ask this Court to do

in the instant case is re-determine whether the re-

Joint Petition of Aeronutronic Ford

22a et al. for Rehearing

straining orders obtained by the manufacturers in

various federal district courts should have issued .. . .

As the United States Court of Appeals for the District

of Columbia Circuit has noted, ‘in the interests of

comity and the orderly administration of justice we

should not attempt to reexamine . . . matters con-

sidered and resolved by . . . a court having authority

equal to our own.’ Hilton Hotels Corp. v. Weaver,

117 U. S. App. D. C. 83, 325 F. 2d 1010 (1963), cert.

denied, 376 U.S. 951 (1964).”

400 F. Supp. at 853.*

Ill. Reasons for Granting Rehearing.

In reversing Judge Richey’s order of dismissal, the

panel proceeded under a complete misapprehension that

the “close-out” order entered by Judge Latchum rendered

the preliminary injunction “dead” and constituted a dis-

missal “in fact.” The panel had not seen the “close-out”

order which was not in the record and which was entered

pursuant to a purely administrative-statistical practice in

another circuit, a practice with which the panel was not

familiar. This misapprehension was understandable since

4. Thus, the plaintiffs fell victim to their own strategy of forum

shopping by consciously electing not to seek intervention as of right

in the Delaware action under Rule 24(a). Their persistent avoid-

ance of the Delaware forum, where the real action was occurring

and rights were og determined, does not ; nate a case or

controversy with the CPSC. Any prejudice suffered by lng =

can only be attributed to their reluctance to intervene in Dela-

ware action on the side of the CPSC. Moreover, Judge Richey’s

deference to the Delaware temporary restraining order has been

fortified by Judge Latchum’s issuance of a preliminary injunction

(following a nana: Some Judge Richey rendered his ——,

The cutee door in Delaware remains open to the plaintiffs and

we welcome their presence there and will interpose no obstacle to

their participation.

Joint Petition of Aeronutronic Ford

et al. for Rehearing 23a

the point was not briefed, and was decided without the

benefit of any meaningful oral argument on the point. As

can be readily ascertained from the order in the accom-

panying Appendix, the preliminary injunction continues in

fact to be in full force and effect. Moreover, Judge

Latchum on July 11, 1977, reaffirmed his intention that

this injunction remain in effect.*

The linchpin [sic] of the panel’s decision was its deter-

mination that the preliminary injunction was dead and that

the Delaware action could be treated as having been dis-

missed. Therefore, in the panel’s view, the Commission

was voluntarily withholding the documents which gave

rise to a “case or controversy” involving the plaintiffs.

Since the preliminary injunction in reality is still effec-

tive, there never was any basis for the panel's decision.

The CPSC remains enjoined from releasing the requested

documents and since the CPSC agrees with the plaintiffs

that the documents are subject to disclosure, there is noth-

ing left to adjudicate in this proceeding. The panel's mis-

conception concerning the status of the Delaware pre-

liminary injunction mandates a rehearing and affirmance

of Judge Richey’s decision that no “case or controversy”

exists. The case in Delaware, which is going forward, con-

5. On July 11, 1977, the parties in the Delaware action met

u

pow Pe tchum to discuss the meaning of his “close-out” order

and the status of the preliminary injunction. As made clear by the

anaes ot Sue comers (see pages A-6 through A-22 of the

Appendix), the preliminary injunction remains in ;

“The Court: I am not going to tell you how to run your

law suit. I feel that the Court of Appeals in the District of

Columbia misconstrued the Order that was entered, the Minute

Order, which had nothing to do with anything but statisticals,

the case workload of this Court as outstanding cases for case

load purposes. It didn’t dispose of the case, it didn’t dismiss

the action, there was not substantive interference with the pre-

liminary injunction that is outstanding and remains outstand-

ing... .” (Transcript at 10-11; Appendix at A-18, A-19).

Joint Petition of Aeronutronic Ford

24a et al. for Rehearing

sequently provides a forum for a decision of the rights of

all parties who want their rights adjudicated, and who are

willing to abandon an effort to side-step an adverse pre-

liminary, but careful, review of the controversy by a court

coequal to the District Court for the District of Columbia.

IV. Reasons For Granting Rehearing En Banc.

The panel decision evidences a total disregard for

the deference and comity to be accorded the Delaware

preliminary injunction order, places the Commission in

the position of facing possible conflicting orders, and mis-

construes the “case or controversy” requirement of Article

III of the Constitution.

(1) Considerations of Comity and Deference Mandate

That This Court Respect the Order of the United

States District Court for the District of Delaware

and Dismiss This Action.

Fully aware that the United States District Court for

the District of Delaware had issued a thoughtful and

detailed 56-page opinion in support of its preliminary

injunction barring disclosure of the same documents sought

by plaintiffs in the District of Columbia, the panel pro-

ceeded to hold that Judge Richey, in essence, should re-

determine the issues passed upon by Chief Judge Latchum,

ignoring the possible conflict with the outstanding order.*

6. In holding that the District Court for the District of

Columbia is a “peculiarly appropriate forum” for deciding the

matter, the Court simply puts to one side the fact that if this case

does present a “case or eoies » © could more appropriately

be transferred to the jurisdiction w all other cases various

jurisdictions have already been consolidated. Why is a tribunal yet

to examine the merits more appropriate than a court which has al-

ready extensively grappled with the issues? The plaintiffs can with

the greatest of ease make their voices felt in the Delaware Court,

if they question the capabilities or motives of the CPSC in defend-

ing its cause.

Joint Petition of Aeronutronic Ford

et al. for Rehearing 25a

Such a holding flies in the face of the well-established

principle that a district court as a matter of comity and

orderly administration of justice should not attempt to

interfere with an outstanding decree of another district

court. Hilton Hotels Corp. v. Weaver, 117 U. S. App.

D. C. 83, 325 F. 2d 1010 (1963), cert. denied, 376 U. S.

951 (1964); Mann Manufacturing, Inc. v. Hortex, Inc.,

439 F. 2d 403 (5th Cir. 1971) (Wilkey, J.); Lapin vw.

Shulton, Inc., 333 F. 2d 169 (9th Cir.), cert. denied, 379

U. S. 904 (1964); Gardner v. United States, 13 F. 2d 851

(9th Cir. 1926); Louisville & Nashville R. R. v. Western

Union Telegraph Co., 233 F. 82 (5th Cir. 1916), affd,

250 U. S. 363 (1919); United States v. Rabin, 263 F.

Supp. 989 (S. D. Fla. 1966); Torquay Corp. v. Radio

Corporation of America, 2 F. Supp. 841 (S. D. N. Y. 1932).

As noted by Judge Wilkey in Mann Manufacturing, Inc.

v. Hortex, Inc., supra,

“When a court is confronted with an action that would

involve it in a serious interference with or usurpa-

tion of this continuing power [to modify injunctions],

‘considerations of comity and orderly administration

of justice demand that the nonrendering court should

decline jurisdiction * * ° and remand the parties for

their relief to the rendering court, so long as it is

apparent that a remedy is available there.” 439 F.

2d at 408, quoting from Lapin v. Shulton, Inc., 333

F. 2d 169, 172 (9th Cir.), cert. denied, 379 U. S. 904

(1964).

Certainly the panel should not be inviting Judge Richey to

set aside Chief Judge Latchum’s decree.

Joint Petition of Aeronutronic Ford

26a et al. for Rehearing

(2) The Panel’s Decision Has Placed the CPSC in the

Dangerous Position of Possibly Being Confronted

With Conflicting Orders By Two Co-Equal Courts.

Chief Judge Latchum has made it abundantly clear

by his remarks on July 11, 1977 that his preliminary in-

junction order remains operative. The course upon which

the panel has now asked Judge Richey to embark is to

disregard that which has already been determined and

which, in all likelihood, wil] finally be determined by the

Delaware court. The panel is seeking nothing short of a

confrontation between the jurisdictions. It is doing so in

a lawsuit which was not filed to obtain an interpretation

of Chief Judge Latchum’s order, but to obtain access to

certain documents. This was in a lawsuit against a party,

the CPSC, which readily agrees that the plaintiffs should

have access.

We respectfully submit that this panel should not

sponsor such a possible conflict which would arise if Judge

Richey on the merits should differ from Chief Judge

Latchum. Instead, it should have been the purpose of

this panel to avoid such a conflict by affirming the deci-

sion below, or directing Judge Richey that he either stay

the proceeding or invite a motion to transfer the proceed-

ing to the Delaware District. Of course, it is our position

that in the circumstances of this case there is simply no

“case or controversy” and that Judge Richey correctly as-

sessed that the interest of justice would best be served by

requiring plaintiffs to lodge their complaint in the same

jurisdiction where all other cases involving this contro-

versy have in due course come to be consolidated. It was

in the same spirit of consolidation that the CPSC con-

sented to the transfer of those cases which originated in

other jurisdictions and which were in due course trans-

ferred to Delaware.

Joint Petition of Aeronutronic Ford

et al. for Rehearing 27a

All that the plaintiffs have accomplished by insisting

on their choice of forum has been an endless series of de-

lays, including the delay before this Court. While we

have no interest in defending the CPSC’s diligence or

strategy, certainly all must recognize that any ultimate

delay in having this matter finally adjudicated cannot be

placed at the doorstep of CPSC, to the exclusion of the

plaintiffs-appellants.

(3) The Panel Decision Emasculates the “Case or Contro-

versy’ Requirement of Article III of the Constitution.

In its effort to provide the plaintiffs with the forum of

their choice, the panel held that a “case or controversy”

exists between the requesting party and an agency when-

ever an agency withholds documents solely because it has

been enjoined from releasing the requested documents.

The CPSC does not challenge the plaintiffs’ right to obtain

access to the documents. Plaintiffs, contrary to the panel’s

view, did not seek to challenge the validity or scope of the

Delaware preliminary injunction.’ Thus, there is no dis-

pute between the parties involving any issue in this action,

and the existence of the preliminary injunction cannot by

itself create a case or controversy.®

7. Nor does CPSC feel the injunction is “dead”. Counsel for

the Department - oe, at a hearing before Judge Latchum on

July 11, 1977 (see Transcript at p. 7; Appendix at A-15) stated:

“The Order that came out of the Court of A could con-

ceivably be construed that the injunction is dead. We do not

believe that your injunction is dead and we would just like to

reassure you.

8. Plaintiffs’ disagreement with the CPSC’s litigation strategy

in Delaware does not give rise to a “case or controversy.” More-

over, the fact that the CPSC elected to not oppose entry of the

temporary restraining orders is a moot point because the temporary

restraining orders were replaced by a preli injunction on

October 23, 1975, which was hotly contested by the C. If plain-

tiffs believe that their interests are not adequately represented in

Delaware, they simply should intervene as defendants in the Dela-

ware action.

Joint Petition of Aeronutronic Ford

28a et al. for Rehearing

The contention that Judge Richey’s decision deprives

plaintiffs of their right to bring FOIA suits in the forum of

their choice ignores the fact that this right extends only to

cases and controversies. If plaintiffs-appellants had a dis-

pute with the CPSC, they could file suit in the forum of

their choice. Alternatively, they could intervene in a third

party suit and move to transfer the action to another

forum. It is the lack of adversity, not the pendency of the

Delaware action, that deprives plaintiffs of the forum of

their choice. It is the fact that plaintiffs-appellants have

their real quarrel with what has happened in Delaware

that makes that the proper forum for any proceeding.

Conclusion.

For the foregoing reasons, defendants-appellees peti-

tion the Court for a rehearing and suggest a rehearing en

banc.

Respectfully submitted,

[Signatures of Counsel Deleted]

»~*

Joint Petition of Admiral et al. for Rehearing 29a

IN THE

UNITED STATES COURT OF APPEALS

For THE District or COLUMBIA CIRCUIT

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

JOINT PETITION OF APPELLEES-ADMIRAL COR-

PORATION, GENERAL ELECTRIC CORPORATION,

MOTOROLA, INC., SHARP ELECTRONICS CORP.,

TOSHIBA-AMERICA, INC.,. AND WARWICK

ELECTRONICS, INC., FOR REHEARING

AND SUGGESTION FOR REHEARING

EN BANC.

Pursuant to Rules 35 and 40 of the Federal Rules of

Appellate Procedure, appellees respectfully petition this

Court for a rehearing and suggest a rehearing en banc of

the July 5, 1977, opinion and order by a three-judge panel

of this Court (Bazelon, Chief Judge, and Wright and

Robinson, Circuit Judges) reversing an opinion of the

District Court, Charles R. Richey, D. J., holding that this

proceeding should be dismissed for lack of a case or contro-

versy. Because the panel's opinion was based upon erro-

neous facts and assumptions, neither in the record or briefs

on appeal nor presented for review by appellants, this

petition presents questions of exceptional importance to all

litigants in this Circuit and elsewhere.

30a Joint Petition of Admiral et al. for Rehearing

Concise Statement of Issues and

Their Importance.

1. The decision of the panel virtually abolishes the

“case or controversy” requirement since it holds that two

parties, a plaintiff and a defendant, who are in fact in

agreement, can burden the district court with litigation in

order to attack a prior injunction (by a court of coordinate

and co-equal jurisdiction) that binds one of the parties.

Appellants-Consumers Union seek certain documents pur-

suant to the Freedom of Information Act (“FOIA”) from

appellee-Consumer Product Safety Commission (“CPSC”).

The appellee-manufacturers, whose documents are at issue,

contest appellants’ right to receive such documents from

the appellee-CPSC. The appellee-CPSC agrees with ap-

pellants that the documents should be turned over. How-

ever, appellee-CPSC claims that it is prohibited from pro-

ducing the documents by the order of the United States

District Court for Delaware (GTE Sylvania v. Consumer

Product Safety Commission, No. 75-104, and cases con-

solidated therewith). The unique holding of the panel,

which incorrectly ruled the Delaware court's injunction

was dead and, therefore, a “case or controversy” existed,

will burden the courts in the District of Columbia with

litigation for many years.

2. In deciding there was a “case or controversy,” the

panel misconstrued the status of the litigation pending in

the United States District Court for the District of Dela-

ware (GTE Sylvania v. Consumer Product Safety Com-

mission, supra).

The panel's decision relies upon facts wholly untrue

and incorrect, which are neither in the record or briefs nor

presented to the district court or this Court on appeal.

The July 11, 1977, transcript of proceedings before the

Delaware court, its Minute Order of August 20, 1977, and

—

Joint Petition of Admiral et al. for Rehearing 3la

the correspondence of the parties filed prior to entry of

the Minute Order are tendered as Exhibits 1 and 2(a)-

(m) * to conclusively establish:

(a) Contrary to the panel’s characterization, the

Delaware proceedings were not “dismissed in

fact” nor was the court’s preliminary injunction

“dead”; and

(b) Contrary to the panel’s conclusion, the agency

has and is pursuing disclosure of these documents

in Delaware.

3. If the panel intended to take judicial notice of the

proceedings in Delaware, its conclusions concerning the

status of that litigation were erroneous. If the panel in-

tended to review and nullify the order of preliminary in-

junction entered by the Delaware court, it was without

jurisdiction to do so. 28 U. S. C. § 1294 (1948); see also

Preston Corp. v. Raese, 335 F. 2d 827 (4th Cir. 1964).

4. The panel erred in deciding issues not raised by

the appellants. The appellants never challenged, or raised

below or on appeal, the “scope and effect” of the Delaware

court's preliminary injunction and, more importantly, con-

ceded the Delaware court’s injunction covered the iden-

tical set of documents requested in the court below.

5. The panel’s holding that “the scope and effect of a

prior judgment are always legitimate subjects of argument

and resolution in a subsequent action” (Slip Op. at 11) is

overly broad and incorrect. The effect of the panel’s rul-

ing on the “case of controversy” issue would hardly be “in

the interests of comity and the orderly administration of

justice.” Hilton Hotels Corp. v. Weaver, 325 F. 2d 1010

(D. C. Cir. 1963), cert. denied, 376 U. S. 951 (1964).

1. Filed herewith as a Motion to Lodge Exhibits.

32a Joint Petition of Admiral et al. for Rehearing

I. The Panel Erroneously Misconstrued the Status of the

Delaware Litigation.

The panel’s July 5, 1977, opinion misconstrued the

status of the co-pending litigation in the United States

District Court for the District of Delaware (e.g., GTE

Sylvania v. Consumer Product Safety Commission, No.

75-104, and cases consolidated therewith).

The panel's finding that the Delaware litigation was

“dismissed in fact,” had “run its course,” and that the

preliminary injunction was “dead” (Slip Op. at 15-16)

is erroneous and is based on material neither in the record

nor briefs at the time of oral argument. Indeed, no party

even raised or called into question whether the Deleware

court’s injunction was alive or dead.

The Delaware litigation, filed prior to the instant

litigation, sought to enjoin the appellee-CPSC from the

attempted release of documents submitted by the appellee-

television manufacturers. The complaint alleged viola-

tions of the agency’s own statutes and the Freedom of

Information Act, among others. The CPSC consistently

took the position that it could legally disclose the docu-

ments requested by appellants herein. The Delaware

court, after discovery was taken, briefs were filed, and

full oral argument, held the CPSC violated its own statute

by failing to take reasonable steps to assure the accuracy

of the data to be released. GTE Sylvania v. Consumer

Product Safety Commission, 404 F. Supp. 352, 373 (D.

Del. 1975). The court preliminarily enjoined the agency

from releasing the documents in issue.

The panel’s erroneous interpretation of the prelimi-

nary injunction apparently arises from a second Order

of the Delaware court (dated August 20, 1977) which

essentially placed the case on an inactive calendar, a

procedure referred to in Delaware as closing the case for

eS TTY

Joint Petition of Admiral et al. for Rehearing 33a

“statistical purposes.” This Order did not dismiss the

case, as the panel erroneously found.

We submit that the panel’s misunderstanding of the

status of the Delaware procedure arises from the fact

that neither the Delaware court’s August 20 Order nor

the correspondence setting forth the positions of the

parties in regard to this Order was before the panel in

the record or the briefs filed herein. Appellees have

respectfully requested the Court to lodge these docu-

ments as exhibits in this proceeding. The documents

show the following critical facts which were not before

the panel:

(a) At the request of the Delaware court (inquiring

about the status of the litigation), the television manu-

facturers stated that they had no objection to the case

being closed for statistical purposes only if the injunction

were to remain in effect until any party decided to reacti-

vate the case. (Exhibits 2(c)-2(m).) The appellee-

CPSC opposed the order and requested that the cases

be maintained as pending cases. (Exhibit 2(b).) The

CPSC further stated that it intended to resist entry of a

permanent injunction on the ground that such relief was

unwarranted. In addition, the appellee-CPSC requested

no further proceedings until a decision was rendered in

Pierce & Stevens Chemical Corp. v. CPSC, Civil No. 1975-

410 (W. D. N. Y.) on the ground that a decision in that

case would be relevant to the proceedings in Delaware.

(b) The August 20 Order specifically states that it

is not to be considered “a dismissal or disposition” of the

case. (Minute Order and correspondence submitted

herewith as Exhibits 2(a)-(m).)

(c) The present status of the Delaware case is such

that it is still alive and that the preliminary injunction

34a Joint Petition of Admiral et al. for Rehearing

is still in effect. Submitted herewith, as Exhibit 1, is a

transcript of pretrial proceedings before the Delaware

court on July 11, 1977. As stated concisely by Judge

Latchum:

I feel that the Court of Appeals in the District of

Columbia misconstrued the Order that was entered,

the Minute Order, which had nothing to do with

anything but statisticals, the case workload of this

Court as outstanding cases for case load purposes.

It didn’t dispose of the case, it didn’t dismiss the

action, there was not substantive interference with

the preliminary injunction that is outstanding and

remains outstanding. . . . (Exh. 1, at 10-11.)

Thus, in reaching its conclusion on the “case or

controversy” issue, the panel relied upon an erroneous

assumption, i.e., the Delaware proceedings were closed

and the injunction was no longer in effect. We submit

that this fact alone warrants a full reargument of this

matter. If the present decision stands, it constitutes an

improper and erroneous nullification of an order entered

by the Delaware court, i.¢., a nullification that the panel

was without jurisdiction to undertake. 28 U. S, C. § 1294

(1948); see also Preston Corp. v. Raese, 335 F. 2d 827

(4th Cir. 1964).

Il. The Panel Reached an Erroneous Conclusion When It

Found Absent From the Delaware Proceedings Any

Party Requesting Disclosure.

Contrary to the panel's intimations, the appellee-

CPSC has consistently taken a pro-disclosure position. On

March 28, 1975, the CPSC reached its decision to release

the documents requested by appellants. In both this liti-

gation and in the Delaware litigation, the CPSC has con-

Nl

Joint Petition of Admiral et al. for Rehearing 35a

tinued to align itself with the appellants’ position that they

are entitled to the documents requested. (See, e.g., An-

swer of CPSC, { 13; Memorandum of CPSC filed in the

Delaware proceedings referred to in Brief for Defendants-

Appellees GTE Sylvania, et al., at 14, n. 15.)

The panel was obviously unaware of this. Indeed,

throughout the panel’s opinion runs a strong implication

that the CPSC and the Justice Department had not made

any real effort to obtain disclosure of the documents in

Delaware. In declining to give full effect to the Delaware

court's order, the panel stated another reason for doing so

was the “absence from the Delaware proceeding of any

party requesting disclosure.” (Slip Op. at 17.) We sub-

mit that such implied criticism of the government's strat-

egy flies in the face of the panel’s own statement that

“questionable and even clearly incorrect civil litigation

strategy is ordinarily beyond the concern of an appellate

court.” (Slip Op. at 13, n. 27.) More importantly, the

facts (not before the panel nor in the record on appeal )

show the agency adopted a strategy which, in their view,

was calculated to lead to disclosure of the documents in

the Delaware case.’

First, the CPSC opposed the Delaware court’s attempt |

to close out the case for statistical purposes, as set forth

supra. It was certainly not their fault that Judge Latchum

did not accept their position. More importantly, the

CPSC adopted what they believed to be a sound strategy

1, The panel also admonished the ee-CPSC for

“sing mathe fran the date of Oe & oa eee

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43

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36a Joint Petition of Admiral et al. for Rehearing

for obtaining disclosure of the requested documents. After

the CPSC was defeated in its efforts to prevent the Dela-

ware court from issuing an injunction barring disclosure

of the documents at issue, it decided it would be better to

await a decision from another court (Pierce & Stevens

Chemical Corp. v. CPSC, Civil No. 1975-410( W. D.

N. Y.), instead of (a) continuing an appeal of the Dela-

ware court’s decision, or (b) requesting an immediate

hearing on permanent injunction. What is wrong with

this as a trial strategy? The CPSC had already lost in

an extensive argument on the law pertaining to disclosure

before Judge Latchum. While the appellee-television

manufacturers disagree with the government's position on

the importance of the litigation pending in the Western

District of New York, it appears the CPSC made a ra-

tional strategic choice in view of the prior decision in the

Delaware court.

In view of the CPSC’s consistent pro-disclosure posi-

tion in this and the Delaware litigation, it was clear error

for the panel to hold no one represented the pro-disclosure

position in the Delaware proceedings.

III. The Panel Decided Issues Neither Raised Below Nor

on Appeal.

The panel’s opinion concludes that a “case or contro-

versy” exists whenever the “scope and effect of a prior

judgment” are at issue. (Slip Op. at 11.) But this issue

was not raised by any party. As discussed supra, the

status of the Delaware litigation was raised sua sponte by

the panel and characterized incorrectly.’

1. The panel’s erroneous conclusions concerning the status of

the _ or could be attributed, in part, to its r to permit

counsel for the appellee-manufacturers an opportunity for meaning-

ful oral argument. While this case was set os Crees

on August 13, 1976, on the regular calendar, on September 9, 1976,

Joint Petition of Admiral et al. for Rehearing 37a

Nowhere in appellants’ brief was there a contention

that the “scope and effect” of the Delaware court’s order

was in issue. Appellants conceded their Freedom of In-

formation Act request covered the identical set of docu-

ments which were the subject matter of the Delaware suit

and which were enjoined from release by that court.

While appellants did complain in this case that the ap-

pellee-CPSC “failed to fulfill its statutory duty” (Appel-

lants’ Brief at 10) in not releasing the requested docu-

ments, at uo time did appellants contest the “scope and

effect” of the prior injunction entered by the Delaware

court.

Since appellants conceded the scope of the Delaware

court’s injunction covered the documents in issue, the

panel should have confined its review to the issues pre-

sented below. Brown v. Collins, 402 F. 2d 209 (D. C. Cir.

1968); Calhoun v. Freeman, 316 F. 2d 386 (D. €. Cir.

1963); Riley v. Titus, 190 F. 2d 653 (D. C. Cir. 1951).

See also International Business Machines Corp. v. Edel-

stein, 526 F. 2d 32 (2d Cir. 1975); Pierre v. United States,

525 F. 2d 933 (5th Cir. 1976); Bannert v. American Can

Co., 525 F. 2d 104 (6th Cir. 1975), cert. denied, 426 U. S.

942 (1976); Associated Press v. Cook, 513 F. 2d 1300

(10th Cir. 1975).

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38a Joint Petition of Admiral et al. for Rehearing

IV. The Panel’s Conclusion as to What Constitutes a “Case

or Controversy” Is Overly Broad and Erroneous.

The panel’s conclusion that “the scope and effect of a

prior judgment are always legitimate subjects of argument

and resolution in a subsequent action” (Slip Op. at 11) is

overly broad and wrongfully sweeps within its ambit

matters clearly inappropriate for subsequent review. Ap-

pellees submit that the power of one federal district court

to review the prior judgment of another federal district

court is not nearly as broad as the panel stated and that

the court below was correct in dismissing the appellants’

FOIA action.

The cases cited by the panel do not support its con-

clusions concerning the scope and effect of a prior judg-

ment of a coordinate and co-equal court. Cromwell v.

County of Sac, 94 U. S. (4 Otto), 351 (1877) (Slip Op. at

11 and n. 26) is a leading case on the distinctions between

res judicata and collateral estoppel. The court in Crom-

well held that a prior judgment was res judicata with re-

spect to the claim or claims then at issue but would operate

as an estoppel with respect to claims in subsequent actions

different than those theretofore raised. In short, only those

matters would be precluded that were previously at issue

and adjudged. The court in Cromwell did not hold that a

court has the power to generally review matters adjudi-

cated by a court of equal jurisdiction; inaeed, the court's

pronouncement on res judicata suggests just the opposite.’

1. The panel's reliance on Hans v. Lee, 311 U. S. 32

(1940); Gonzales v. Cassidy, 474 F. 2d 67 (5th Cir. 1973); and

search Corp. v. Edward J. Funk & Sons Co., 15 Fed. Rules Serv.

2d 580 (N. D. Ind. 1971), is similarly misplaced. These cases were

limited to the narrow question of whether an earlier judgment in a

class action case was b Tercs 0 paw she lee ae

a uate representation as a member of the class. It was con-

that question of the adequacy of representation was

susceptible of review. The appellee-manufacturers respectfully

Joint Petition of Admiral et al. for Rehearing 39a

As a rule of policy, this Court should avoid interfering

with a prior order of a court of concurrent jurisdiction.

This Court has enunciated the principle that should be

followed in instances where a court is asked to review the

prior judgment of a co-equal court. In Texaco Inc. v.

Hickel, 437 F. 2d 636, 646 (D. C. Cir. 1970), the court *

held:

It is a sound and important policy in the administra-

tion of justice that what has already been done and

determined not be redone and redetermined unneces-

sarily. This policy requires that courts not be nig-

gardly in giving full effect to prior determinations of

fact and right.

(See also Mann Manufacturing, Inc. v. Hortex, Inc., 439

F. 2d 403 (5th Cir. 1971).)

That the panel would force the appellee-manufac-

turers to relitigate the identical issue (as to the CPSC’s

ability to release the documents in question) a second time

in this forum is a state of affairs which hardly would be

“in the interests of comity and the orderly administration

submit that this narrow holding does not su rt the Court’s sweep-

ing statement that “the scope and effect of a prior judgment are

proper that, generally, one feline, tn enovdinate furlediction with

judge, shoul

another not that other); In re Persico, 362 F.

Supp. 713, 714 (E. D. N. Y. 1973) es of coordinate jurisdiction

do not, except in the most extrao situations, have the func-

Bank & Trust Co., 263 F. aoup, 5, 270 (E. D. Ky. 1967) (that is

eS ae decided a question of law in one

40a Joint Petition of Admiral et al. for Rehearing

of justice.” Hilton Hotels Corp. v. Weaver, 325 F. 2d 1010

(D. C. Cir. 1963), cert. denied, 376 U. S. 951 (1964).

Therefore, the facts of this case clearly do not warrant the

sweeping conclusion concerning the “scope and. effect” of

a prior judgment. For this additional reason, the panel’s

holding is overly broad and incorrect as a matter of law.

Conclusion.

This Court is urged to grant appellee-manufacturers’

request for a rehearing and its suggestion that there be a

rehearing en banc.

Respectfully submitted,

[Signatures of Counsel Deleted]

RCA Corporation's Petition for Rehearing Ala

7 IN THE

UNITED STATES COURT OF APPEALS

For THE Districr oF CoLtumsBia CiRcuIT

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

0.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

PETITION OF APPELLEE, RCA CORPORATION,

FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC.

Pursuant to Rules 35 and 40 of the Federal Rules of

Appellate Procedure, Appellee, RCA Corporation, hereby

petitions for rehearing, and suggests the appropriateness

of rehearing en banc, of the decision in this case filed on

July 5, 1977 by a panel of this Court consisting of Chief

Judge Bazelon and Judges Wright and Robinson.

Concise Statement of Issues and

Their Importance.

1. The decision of the panel (written by Wright, J.)

remands this case to the United States District Court for

the District of Columbia with instructions to determine

whether documents filed with the Consumer Product

Safety Commission (“CPSC”) by the television manu-

facturer defendants should be disclosed to appellants,

despite the fact that the United States District Court for

42a RCA Corporation's Petition for Rehearing

the District of Delaware has already enjoined the CPSC

from disclosing those documents. The decision of the

panel was based in substantial part on a misapprehension

of fact, namely an erroneous assumption that the Dela-

ware action “had run its course” (Slip Op. p. 15) and

that the injunction entered therein was, in the words of

the panel, “dead” (Slip Op. p. 16). The fact is that the

Delaware action has not run its course and that the in-

junction is very much alive.

The effect of the panel’s remand of the action to the

court below to determine “whether or not the documents

should in fact be disclosed” is to set the court bel--v on

a collision course with the United States District Court

for the District of Delaware. The important issue is

whether this is the result intended by the panel, and if

it is, whether such a result accords with principles of

comity and the orderly administration of justice.

2. The panel concluded that, notwithstanding the

fact that the CPSC was in total agreement with the

plaintiffs on the ultimate question which the plaintiffs

seek to have resolved in this case, i.e., a determination

that the documents in question should be disclosed to

the plaintiffs, the case should be permitted to proceed in

the court below with plaintiffs on one side and the CPSC

on the other. This conclusion does violence to the funda-

mental constitutional reauirement which limits jurisdiction

of federal courts to actual cases or controversies between

adverse parties.

Reasons for Granting Rehearing.

A. Background of the Appeal.

In 1974, the CPSC obtained certain “TV related

accident reports” from various television manufacturers,

RCA Corporation's Petition for Rehearing 43a

pursuant to requests and subpoenas. In April 1975, the

CPSC advised the manufacturers that it had made a

determination publicly to disclose the documents so ob-

tained and certain compilations made therefrom. Thirteen

manufacturers immediately brought suit against the CPSC

to enjoin the threatened disclosure, on the grounds that

disclosure would be in violation of various provisions of

the Freedom of Information Act, the Consumer Product

Safety Act and the Criminal Code. Temporary restrain-

ing orders were obtained by the manufacturers and the

cases were consolidated in the United States District Court

for the District of Delaware (where eight of the thirteen

actions had been brought). Ultimately, Chief Judge

Latchum of that court, after deposition discovery, the

submission of extensive briefs, affidavits and argument,

entered a preliminary injunction restraining the CPSC

from disclosing the documents in question. A copy of the

injunction entered by Chief Judge Latchum is Exhibit

“A” to RCA’s motion to lodge exhibits. The decision to

enjoin was based on a lengthy well-reasoned opinion

which is reported at 404 F. Supp. 352.

Meanwhile, after the actions by the manufacturers

had been brought, the plaintiffs herein brought the instant

action to compel CPSC to disclose to them the very same

documents which CPSC had already decided to disclose

and which were the subject of the actions instituted by

the manufacturers.

Upon motion of the defendants, Judge Richey dis-

missed the action below on the ground that there was no

case or controversy between plaintiffs and the CPSC since

they were in agreement that the documents should be

disclosed, that the plaintiffs were not seeking any relief

from the manufacturers, and that considerations of judicial

comity and the orderly administration of justice precluded

44a RCA Corporation's Petition for Rehearing

him from attempting to reexamine matters already ruled

upon by Judge Latchum in Delaware.

B. The Decision of the Panel.

On July 5, 1977, a panel of this Court reversed and

remanded the matter to Judge Richey with instructions to

determine “whether or not the documents should in fact

be disclosed.” (Slip Op. p. 17).

1. The Panel’s Erroneous “Case or Controversy”

Conclusion.

The panel initially concluded that there was, in fact,

a justiciable case or controversy between plaintiffs and

the CPSC. The panel’s opinion recited two grounds for

this conclusion, namely (1) a disagreement between the

plaintiffs and CPSC as to whether the injunction entered

by Judge Latchum “absolves the Commission of what [the

plaintiff's] believe is the Commission's statutory duty to

furnish the requested documents” (Slip Op. p. 11) and

(2) “the Commission’s conduct of the Delaware litiga-

tion . . . is not easily reconcilable with its ostensible ac-

ceptance of appellants’ argument that the requested

documents should be disclosed.” (Slip Op. p. 12).

The panel's first basis for finding a “case or contro-

versy” goes too far. It would mean that whenever two

persons with identical interests disagree with the judg-

ment of a federal district court entered against one of

them, they can bring a lawsuit in another federal district

court to try to bring about a different result. One can be

the plaintiff and the other the defendant in the second

litigation. In fact, that is precisely what happened here.

Instead of intervening in the ongoing Delaware actions,

where the CPSC had temporarily been enjoined from do-

ing what plaintiffs and the CPSC wanted to do, plaintiffs

RCA Corporation's Petition for Rehearing 45a

brought the instant action in the District of Columbia

(presumably a more favorable forum for them) against

their ally, the CPSC. They asked that the CPSC be or-

dered to do precisely what it wanted to do, but what the

other court had just enjoined it from doing. This is not a

real controversy between the plaintiffs and the CPSC. It

is just an end run around a ruling of another federal court.

The panel’s second basis for finding a “case or con-

troversy” is equally invalid. The panel questions whether

CPSC really wants the same result as plaintiffs because,

in the panel’s view, the government adopted some ques-

tionable legal strategy in the Delaware action. Without

any factual support, the panel has cast aspersions on the

good faith of the CPSC and the Department of Justice in

their handling of the Delaware litigation. The panel sus-

pects that the government was fighting with a pillow in

the Delaware action and was not really seriously opposing

the manufacturers’ efforts to block disclosure of the docu-

ments. There is absolutely no basis in the record in this

case or anywhere else for such a conclusion. The fact is

that the government vigorously opposed the manufac-

turers in the Delaware proceedings and forcefully advo-

cated the “pro-disclosure” position. That the government

lost the battle does not mean that it did not fight with all

the vigor at its command.

The panel appears to have some questions about the

trial strategy followed by the government in the Delaware

action. There is nothing in this record on that point, ex-

cept for the fact that the government agreed to the entry

of some of the temporary restraining orders barring dis-

closure of the documents until the matter could be heard

by the Delaware court. This is a weak reed upon which

to base a challenge to the good faith of the government.

We believe that the government agreed to the temporary

restraining orders because it knew that the orders would

46a RCA Corporation's Petition for Rehearing

be routinely granted anyway, and because it properly felt

that the manufacturers were entitled to a judicial deter-

mination as to whether the documents should be released.

Obviously the whole matter would have become moot if

the documents were released before the case could be

heard.

The fact that the government has not requested that

the Delaware action be set down for final hearing is no

indication of improper handling of the action. The gov-

ernment may have concluded on the basis of the strong

opinion by Judge Latchum that the handwriting was on

the wall, and that if it promptly brought the matter to a

final hearing in Delaware, the preliminary injunction

would be made permanent. The best strategy from the

government's standpoint, perhaps with the blessing of the

plaintiffs in this case, may have been to permit the Dela-

ware action to remain inactive and await a possibly more

favorable ruling from some other court. For example, the

government specifically advised Judge Latchum (by let-

ter dated August 16, 1976) that it wanted the proceedings

to be held in abeyance pending a ruling in a similar case

pending in the Western District of New York.

If the existence of a “case or controversy” depends

on the propriety of the strategy followed by the govern-

ment in its handling of the Delaware action, then there

ought to be an evidentiary hearing on that issue, or the

parties should be requested to submit briefs relating to

that issue. The court cannot simply assume that the gov-

ernment’s strategy was improper.

We submit that it was clear error for the panel to find

the requisite “case or controversy” in either a “dispute”

over the meaning of Judge Latchum’s order, or in the

litigation strategy followed by the government in the

Delaware action. What the panel is ordering to be tried

in the district court and what the plaintiffs are seeking to

RCA Corporation's Petition for Rehearing 47a

have tried in the district court is neither of these issues.

According to the conclusion section of the panel’s opinion

“the issue on remand will be, quite simply, whether or not

the documents should in fact be disclosed.” On that is-

sue, there is no case or controversy between the plaintiffs

and CPSC. Both of them agree that the answer to the

question is in the affirmative. They agree that the docu-

ments should be released. They “desire precisely the

same result.... There is, therefore, no case or contro-

versy within the meaning of Art. III of the Constitution.”

Moore v. Charlotte-Mecklenburg Board of Education, 402

U. S. 47, 48 (1971).

The fact that the manufacturers have interests ad-

verse to the plaintiffs on this issue does not create a case

or controversy between the plaintiffs and CPSC. More-

over, the statute under which the plaintiffs are suing (the

Freedom of Information Act, “FOIA”) is a statute under

which relief may be obtained only against government

agencies. In order for there to be a case or controversy in

an FOIA case there must be genuine adversity between

the plaintiffs and the governmental agency being sued on

the fundamental question of whether the requested docu-

ments should be turned over to the plaintiffs. There is

no such genuine adversity here and there never has been.

2. The Panel’s Erroneous Assumption That the Dela-

ware Lawsuit Had Run Its Course and That the

Injunction Was Dead.

Having found the existence of a case or controversy,

the panel then turned to what is called the “merits,” and

considered the legal effect on this action of the Delaware

injunction. The panel determined that the Delaware in-

junction was no “insuperable barrier” to the suit at bar

because of the panel’s stated belief that the Delaware ac-

48a RCA Corporation's Petition for Rehearing

tion had “run its course” and been “dismissed in fact”, and

that Judge Latchum’s “preliminary injunction is dead”

(Slip Op. pp. 15-16). The panel had no basis upon which

to predicate this belief and its understanding as to the

status of the Delaware action is simply wrong.

There was no evidence before the panel as to the

status of the proceedings in the District Court in Dela-

ware. This matter was not the subject of any evidence in

the record, of any argument in the briefs or of any but the

most passing reference at oral argument. The panel’s be-

lief as to the status of the Delaware case, a belief which

colors its whole opinion, was based on an erroneous im-

pression of the facts pertaining to that litigation. The true

status of the Delaware proceeding is summarized in the

ensuing paragraphs and this summary is documented in

the exhibits appended to RCA’s motion to lodge exhibits.

The Delaware preliminary injunction was issued on

October 23, 1975 (Exhibit A). By its terms the injunction

was to remain in effect “until further order of the Court.”

On August 2, 1976, Chief Judge Latchum advised the

parties by letter that unless the parties intended to request

a hearing for permanent injunctive relief, the court in-

tended to close the Delaware cases for statistical purposes

only. By letter dated August 16, 1976, the government

requested that the cases be maintained as pending cases

but that further discovery and a further hearing be post-

poned until a decision issues in a case pending in the

Western District of New York, which the government

thought might ultimately resolve the issues pertinent to

the Delaware cases (Exhibit B). RCA and other manu-

facturers responded to Judge Latchum’s inquiry by letters

stating that they had no objection to the cases being closed

for statistical purposes provided that it was understood by

all concerned that the preliminary injunction entered on

RCA Corporation's Petition for Rehearing 49a

October 23, 1975 remained in effect (Exhibit B). Judge

Latchum then issued a “Minute Order” on August 20, 1976

instructing the clerk “to submit a JS-6 form to the Admin-

istrative Office and close these cases for statistical pur-

poses” (Exhibit C). The Minute Order further provided:

“Nothing contained herein shall be considered

a dismissal or disposition of the matter and should

further proceedings become necessary or desirable,

any party may initiate in the same manner as if this

minute order had not been entered.”

It was clear to all of the parties in the Delaware cases

that the preliminary injunction remained in effect and it

was equally clear to Judge Latchum. Judge Latchum’s

understanding in this respect was reaffirmed last week

when the parties to the Delaware cases met with him and

discussed the panel’s opinion and its implications (Exhibit

D). At that conference, held on July 11, 1977, Judge

Latchum stated (at pages 10-11):

“I feel that the Court of Appeals in the District of

Columbia misconstrued the Order that was entered,

the Minute Order, which had nothing to do with any-

thing but statisticals [Judge Latchum really said “sta-

tistics” ], the case workload of this Court as outstand-

ing cases for case load purposes. It didn’t dispose of

the case, it didn’t dismiss the action, there was not

substantive interference with the preliminary injunc-

tion that is outstanding and remains outstanding

At the conference, Judge Latchum advised the parties

(p. 12) that he had a clear calendar and that he would put

the matter down for hearing on final injunction if any of

the parties moved for such a hearing. On July 13, 1977 the

manufacturers moved Judge Latchum to make the pre-

50a § RCA Corporation's Petition for Rehearing

liminary injunction permanent and to set the matter down

for hearing at the earliest possible date for that purpose

(Exhibit E). On July 15, 1977, Judge Latchum entered

an order setting the cases down for trial on September 12,

1977 (Exhibit F).

The panel's erroneous assumption that the Delaware

action had “run its course” and had been “dismissed in

fact” and that Judge Latchum’s injunction was “dead”

could only have resulted from the fact that the foregoing

facts were not before the panel.’ We are confident, there-

fore, that the panel will desire to reconsider this decision

and to grant reargument.

3. If the Case Is to Be Remanded, the Remand Order

Should Be Modified to Avoid a Collision Between

the District of Columbia and Delaware Courts.

With the Delaware action and injunction being very

much alive (contrary to the panel’s erroneous assumption ),

the decision of the panel to send the case back to Judge

Richey to determine “whether or not the documents should

in fact be disclosed” (Slip Op. p. 17) sets Judge Richey

on a potential collision course with Judge Latchum. Such

a course would be completely inconsistent with funda-

mental principles of comity and sound judicial manage-

ment. If the Court continues to believe that a case or

controversy was presented below, we submit that in view

of the live status of the Delaware action the order on re-

mand should be quite different from that entered by the

panel. An appropriate order would be one directing Judge

Richey to stay further proceedings in the case before him

pending final determination of the Delaware action. See

1. The developments demonstrated by Exhibits D, E F ata F

have happened since the panel's decision. But they

strate the panel's mistake in conclu that the Delaware —.

was finished. _

RCA Corporation's Petition for Rehearing 5la

e.g. Hilton Hotels Corp. v. Weaver, 325 F. 2d 1010 (D. C.

Cir. 1963); O’Hare International Bank v. Lambert, 459

F, 2d 328, 331 (10th Cir. 1977); Martin v. Graybar Electric

Co., 266 F. 2d 202, 204 (7th Cir. 1959); Carbon and Car-

bide C. Corp. v. United States I. Chemicals, 140 F. 2d 47,

49 (4th Cir. 1944). If the Court is concerned as to whether

the Delaware action will proceed with dispatch, the stay

could be conditioned upon the parties proceeding in that

manner. If the Court is concerned that the plaintiffs in

this case are not parties to the Delaware action, it can

suggest that the plaintiffs intervene in the Delaware action,

and they have our assurance that we will not oppose any

such intervention. If plaintiffs thereafter elect to continue

their deliberate abstention from participation in the Dela-

ware action, they have only themselves to blame.

Such a remand order by this Court will avoid the un-

seemliness inherent in two federal courts proceeding along

potentially conflicting paths, and it will still protect the

plaintiffs and permit the matter to continue in the court

which has already gone past the preliminary injunction

stage, has developed expertise on the subject, and is pre-

pared to proceed promptly with a final hearing. At the

very least the panel’s order should be amended so as to

permit Judge Richey to adopt such a course of action if

the facts and circumstances presented to him indicate that

such an approach is proper. To direct him simply to de-

cide “whether or not the documents should in fact be

disclosed” is we submit, highly improper under the cir-

cumstances.

Respectfully submitted,

[Signatures of Counsel Deleted]

52a Government's Petition for Rehearing

IN THE

UNITED STATES COURT OF APPEALS

For THE District or COLUMBIA CIRCUIT

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

FEDERAL APPELLEES’ PETITION FOR

REHEARING.

Pursuant to Rule 40, F. R. App. P., the federal appel-

lees respectfully petition this Court to rehear the above-

captioned case. The question presented in this case was

whether a “case or controversy” existed between plaintiffs

and the Consumer Product Safety Commission. The Court

ruled that a “case or controversy” did exist, and remanded

the matter to the district court to determine the merits of

plaintiffs’ FOIA claim. The Court’s holding in large part

turned on its conclusion that a preliminary injunction

which had previously been issued in a reverse FOIA suit

by the District Court for the District of Delaware was no

longer of any binding effect. The Delaware injunction

barred the Commission from disclosing any of the docu-

ments which plaintiffs sought in the instant action. This

Court’s conclusion that the injunction was no longer bind-

ing on the Commission rested on the Court’s belief that

the Delaware action had been “dismissed” by the Delaware

Government's Petition for Rehearing 53a

court pursuant to an order which “closed out” the case for

statistical purposes. As we demonstrate below, the Dela-

ware action has not been dismissed. To the contrary, a

trial on the merits in that case has been scheduled for

September 12, 1977.

Rehearing is essential in this case because the Court

was not fully appraised of the status of the Delaware action

when it reached its decision. That critical issue was not

discussed by any of the parties in their briefs, and was only

barely alluded to at oral argument. Rehearing, moreover,

is critical to the government's interests, since this Court's

opinion now raises the spectre that the government may

be subject to inconsistent decrees by courts of equal juris-

diction. It is therefore critical that this Court reconsider

its disposition of this case in light of the current, live status

of the reverse FOIA suit in Delaware.’

I.

Facts.

The facts are fully set forth in the Court’s opinion and

therefore are only briefly summarized here. Plaintiffs,

Consumers Union, et al., submitted a Freedom of Infor-

mation Act request to the Commission on June 14, 1974,

requesting copies of accident reports which had been sub-

mitted by 13 TV manufaccurers. Some nine months later,

the Commission, in accordance with a decision schedule

agreed to by plaintiffs, and after carefully reviewing the

reports, decided to release them to the requesters. Shortly

thereafter the 13 TV manufacturers who had submitted

the reports filed suit in various federal district courts to

Be es een Doe See 0 ete aie.

petition, a suggestion rehearing en banc. our view,

rehearing en bane i inappropriate since we fel that the pane

which heard the case will to correct the points which it mis-

apprehended.

54a Government's Petition for Rehearing

enjoin their disclosure. These suits were eventually con-

solidated in the District Court for the District of Delaware

which, on October 23, 1975, granted the manufacturers’

request to preliminarily enjoin disclosure of the documents.

See GTE Sylvania, Inc. v. Consumer Product Safety

Com’n., 404 F. Supp. 352 (D. Del., 1975). The instant

FOIA cause of action, which was filed while the suits in

the reverse cases were pending in the Delaware court, was

dismissed for lack of jurisdiction on September 12, 1975.

In Judge Richey’s view, there was no case or controversy

between plaintiffs and the CPSC since they were both in

agreement that the documents should be released. Fur-

thermore, the Court held, considerations of judicial comity

and orderly administration of justice precluded the Court

from re-examining orders issued by the Delaware district

court.

On August 20, 1976, while plaintiffs’ appeal from the

order of dismissal was pending before this Court, Judge

Latchum issued a Minute Order in the Delaware case in-

structing his clerk to “close these cases for statistical pur-

poses.” The order provided, however, that:

Nothing contained herein shall be considered a dis-

missal or disposition of the matter and should further

proceedings become necessary or desirable, any party

may initiate in the same manner as if this minute order

had not been entered.

Accordingly on July 15, 1977, pursuant to a motion by

the television manufacturers to make permanent the pre-

liminary injunction, the Delaware court set a trial date of

September 12, 1977 to determine the merits of the reverse

FOIA suits.

The government has opposed the motion for a perma-

nent injunction, and in addition, has filed a motion to

Government's Petition for Rehearing 55a

transfer the Delaware case to the District of Columbia on

the grounds that the District of Columbia is a more con-

venient forum to resolve the issues in that case.”

Il.

The Delaware Decree Is Not “Dead”.

In reaching the conclusion that a case or controversy

existed between Consumers Union and the CPSC, despite

their agreement that the documents at issue should be re-

leased, the Court relied on the premise that “[t]he scope

and effect of a prior judgment are always legitimate sub-

jects of argument and resolution in a subsequent action.”

While the Court’s statement may be true as a general

proposition, it does not suffice to establish that a case or

controversy exists in this case. To begin with, the rule that

judgments are subject to being challenged in later actions

only applies to final judgments; it does not apply to inter-

locutory decrees, over which the rendering courts have

plenary control. 7 Moore, Federal Practice, { 60.37(2},

p. 627. Furthermore, even when final judgments are sub-

ject to collateral attack, the proper forum for raising such

challenges is in the court where the original judgment was

rendered. This is certainly the case with respect to Rule

60(b) motions, the normal avenue for challenging final

judgments. It is equally true, however, when a third party

challenge is brought to a final judgment by means of an

independent action in equity.’

2. The perennant 00 she aie’ Ge Peveave anak veese

its order Sarre i Is? 96 Se Cate Ser ote, palonees

on the that the recent amendment of 5 U. S. C (b)(39

has un the legal basis for the court's preliminary injunc-

tien OO, ere ae eee ee eee Deca ged eee

discovery e are g a motion to e ent

TaEmtiitiumeanumace

3. In T Corporation v. Radio Corporation of America,

2 F. Supp. 841, (S. D. N. Y., 1932), for example, the Torquay

56a Government's Petition for Rehearing

Finally, and most importantly, even if plaintiffs theo-

retically had a right to bring a cause of action in the Dis-

trict of Columbia challenging the preliminary injunction

issued by the District Court in Delaware, the fact is that

plaintiffs never pleaded such a cause of action. Nowhere

in their complaint did the plaintiffs challenge the validity

of the Delaware court’s decrees, and neither their Motion

for Summary Reversal nor their brief on the merits men-

tions the issue. Indeed, it is quite evident that rather than

contesting the issue, all the parties simply assumed that

the Delaware decree continued to be binding on the gov-

ernment. Given this common understanding, shared by

both plaintiffs and defendants, there clearly did not exist

the kind of concrete adversariness with respect to this

issue which is meant to insure that conflicting positions

are fully briefed, and which underlies the constitutional

requirement of a case or controversy. This case in fact

presents a good example of the problems that can arise

when a court attempts to decide issues which are not in

dispute, and which therefore have not been briefed. As

we demonstrate below, had the parties briefed the issue,

3. (Cont’d.)

Corporation brought an action in New York challenging a consent

decree issued in Delaware on the grounds that the parties to the

Delaware case had colluded in the action to the ultimate detriment

of RCA and its stockholders, including Torquay. The New York

district court refused to entertain the suit, ruling that

as a matter of comity and of the orderly administration of

justice, that this court should refuse to exercise its jurisdiction

to interfere with the operation of a decree of another federal

court. we orwng A is this so where it is clear that the United

States District Court in Delaware would have jurisdiction of

such a suit as is now before this court.

See also Lapin v. Shulton, 333 F. 2d 169, 172 (C. A. 9, 1964),

certiorari denied, 379 U. S. 904 (1964), as well as this Court’s own

opinion in Hilton Hotels Corp. v. Weaver, 117 U.S.A P. D. C. 83,

F. 2d 1010 (1963), certiorari denied, 372 U. S. 916 ? 964), upon

which Judge Richey relied.

Government's Petition for Rehearing 57a

this Court would not have come to the erroneous conclu-

sion that the Delaware action had been dismissed.

On October 23, 1975 when the preliminary injunction

was issued, the Delaware court specifically provided that

it would remain in effect “pending final hearing and de-

termination or until further order of the Court”* (Exh.

A).= On August 20, 1976, when the court removed the

case from its open docket “for statistical purposes,” it spe-

cifically provided that:

Nothing contained [in this order] shall be considered

a dismissal or disposition of the matter and should

further proceedings become necessary or desirable,

any party may initiate in the same manner as if this

minute order had not been entered.

(Exh. C). Contrary to this Court’s holding, this order

does not reflect the parties’ understanding that the case

had run its course, and should therefore be dismissed. To

the contrary, before entering the August 20 order, Judge

Latchum specifically inquired of each party what its posi-

tion was concerning the pending litigation, and the parties

uniformly expressed their desire that the matter remain

open. In the government's response to Judge Latchum,

the government specifically stated that “. . . defendants re-

quest that the case be maintained as a pending case” (Exh.

B). The government also informed the court of its inten-

tion to resist the entry of permanent injunctive relief, but

requested that further hearings be delayed pending a de-

4. A preliminary injunction normally remains in effect until a

final judgment is rendered, unless it expires earlier of its own terms,

or is modified by the rendering court. Its yy ponty ay Aa

cording to the needs of the situation in which it is used. See Wright

& Miller, Federal Practice and Procedure, § 2947, pp. 426-27.

5. “Exh.” refers to the exhibits to RCA’s Petition for Rehearing.

58a Government's Petition for Rehearing

cision in a related case, Pierce and Stevens Chemical Corp.

v. CPSC, W. D. N. Y., Civil No. 1975-410° (Id.). The

television manufacturers were equally clear that they

would not consent to a dismissal of the action. In their

responses to Judge Latchum, they stated that they had no

objection to having the case removed from the open cal-

endar “for statistical purposes”, but only “so long as the

preliminary injunction entered on October 23, 1975, re-

mains in effect” (Exh. B). Finally, and most importantly,

the Delaware court itself did not have any intention of

dismissing the case, or of in any way altering the effect of

its preliminary injunction. At a hearing that was held on

July 11, 1977, Judge Lathcum specifically stated that in

his view, this Court misconstrued his order.

... [T]he Order that was entered, the Minute Order,

.. . had nothing to do with anything but statisticals

[sic], the case workload of this Court.... It didn’t

dispose of the case, it didn’t dismiss the action, there

was not substantive interference with the preliminary

injunction that is outstanding and remains out-

standing.

(Exh. D, pp. 10-11). The court further stated its position

that, were government officials to disclose the documents

that were subject to its injunction, the court would find

6. As we explain below, the government believed at that time

that it had little chance of piled “te resisting the television manu-

facturers’ motion for permanent injunctive relief, given the |

opinions expressed by the district court in its September 12, 1

memorandum opinion. It was believed that a favorable decision in

Pierce and Stevens would substantially increase our chances of pre-

vailing on the merits. It was for this reason that we requested that

the hearing be deferred. We are informed that a decision in Pierce

and Cees Ue ae eee nee As noted above,

apn, pS & 5 Se situation today has been altered by the

recent amendment to 5 U. S. C. 552(b)(3).

Government's Petition for Rehearing 59a

such officials in contempt and might well send them to

jail (Exh. D, p. 5).”

It is clear then that, contrary to this Court’s earlier

impression, the Delaware action was not “dismissed in

fact . . . by acquiescence of the parties.” To the contrary,

the action is very much alive, and a trial on the merits is

in fact now scheduled for September 12, 1977. In view

of this fact, there is a very real possibility that the gov-

ernment will be subject to inconsistent decrees and possi-

ble contempt orders if the District of Columbia action is

permitted to proceed. As Judge Wilkey, sitting by desig-

nation, has stated, in such circumstances,

considerations of comity and orderly administration

of justice demand that the nonrendering court should

decline jurisdiction ° ° ° and remand the parties for

their relief to the rendering court, so long as it is

apparent that a remedy is available there.

Mann Manufacturing, Inc. v. Hortex, 439 F. 2d 403, 407-

408 (C. A. 5, 1971), citing Lapin v. Shulton, 333 F. 2d

169, 172 (C. A. 9, 1964), certiorari denied, 379 U. S. 904

(1964).

Ii.

The Government’s Conduct of the Delaware Litigation.

This Court has suggested that the government’s con-

duct of the Delaware litigation presents an additional basis

7. The July 11, 1971 hearing was of course held after this Court

toniath the Aiahiion tenth thea tts eis Uieminin enh ae eat on

much of the documentary evidence contained in the Exhibits, is

now before this Court for the first time. As we pointed out above,

the reason this material was not developed in the es’ briefs

was because there was no ease or controversy conoerang this es-

tion, since plaintiffs never placed in issue the validity Bela-

ware decree.

60a Government's Petition for Rehearing

for concluding that a case or controversy exists with the

plaintiffs. It is quite clear, however, that absent allega-

tions of fraud or collusion, which clearly were not made,

plaintiffs’ criticism of the government's litigation strategy

is completely irrelevant. The final judgment of a federal

court is not subject to challenge on the grounds that the

case should have been litigated differently.* See Federal

Rule of Civil Procedure 60(b); 7 Moore, Federal Practice,

{ 60.37. Moreover, this Court’s analysis of this question

has incorrectly and unfairly cast serious aspersions upon

the integrity and competence of the Commission and the

government attorneys who defended the Delaware action.

The Court should, in simple justice, delete these com-

ments from its published opinion.’

The principal statements to which we take exception

are those in which the Court suggests that the government

was “less than vigilant in espousing its putative view that

the requested documents should be disclosed,” and that

“the pro-disclosure position was all but unrepresented”

(slip op., p. 17). To the contrary, the record reflects that

the government was extremely vigorous in pressing its

position that it should be permitted to release the acci-

dent reports. The primary obstacle to disclosing the re-

8. As noted above, supra, pp. 4-5, judgments which are not yet

final are not subject to challenge for any reason.

9. Numerous decisions held that the Due Process Clause of the

U. S. Constitution requires that attorneys be given notice of charges

and opportunity for an evidentiary hearing before being subjected

to findings of misfeasance. E.g., In re Ruffalo, 390 U. S. 544

(1968 ); Burkett v. Chandler, F. 2d 217 (C. A. 10, 1974),

certiorari denied, 423 U. S. 876 (1975); In re Ming, 469 F. 2d 1352,

1355 (C. A. 7, 1972); Bradley v. Fisher, 80 U. S. 335, 355 (1871);

Randall v. Brigham, 74 U. S. (7 Wall) 523 (1868). The Commis-

sion and the government attorneys in this case never knew that

their integrity and competence were going to be —— by the

Court of A and therefore never had the

fe peed poy Tow bem

Government's Petition for Rehearing 6la

ports was 15 U. S. C. 2055(b)(1), which provides that,

before the Commission can make information public, it

shall insure that the information is accurate, fair under the

circumstances, and likely to further the goals of the Con-

sumer Product Safety Act. Since it was indisputable that

the documents which the Commission had collected (and

which Consumers Union had requested ) contained unveri-

fied accidents reports, the Commission had to demonstrate

that the bar against disclosing inaccurate information was

inapplicable.

In our view, we addressed this question vigorously,

and on many theories. First, we questioned whether 15

U. S. C. 2055(b) (1) was applicable when information was

sought pursuant to an FOIA request. The Delaware

court concluded that § 2055(b)(1) was applicable. We

next argued that the information in the reports was ac-

curate within the meaning of § 2055(b)(1), despite the

fact that much of it was unverified. We thus argued that

the companies, not the government, were responsible for

any inaccuracies; that § 2055(b)(1) did not apply so long

as we did not represent that the information was accurate:

that the disclosed reports would accurately reflect the

number and type of accidents which have occurred; that

the disclosed information must be deemed accurate so

long as it accurately reflected the information we had re-

ceived from the companies; that we had in fact increased

the accuracy of the reports we had received by using a

computer to weed out all duplicate reports; and that dis-

closure should in any event be permitted since it would

further the goals of the Act by informing the public of

the type of hazards which can exist in operating TV re-

ceivers. Finally, we argued that § 2055(b)(1) should not

be considered an absolute bar to disclosure, and that at

the very lease, the Court should not bar disclosure, but

62a Government's Petition for Rehearing

should direct the Commission to take additional measures

to insure that the material complies with § 2055(b)(1).

(See Memorandum in Support of Defendants’ Motion for

Summary Judgment and Opposition to Plaintiffs’ Motions

for Preliminary Injunctions, filed in the Delaware pro-

ceedings.)*® The Court rejected all of the above argu-

ments, ruling that the companies had demonstrated a sub-

stantial likelihood that § 2055(b)(1) barred disclosure of

the reports. Since the Court found that the companies

met the other necessary requirements for preliminary re-

lief, it granted the requested injunction." While it is

true that we did not succeed in persuading the Court that

our position was correct, the above summary of arguments

makes it quite clear that the pro-disclosure position did

not go unrepresented in Delaware, and that the govern-

ment was and is quite genuine in its desire that Con-

sumers Union, and the public in general, should have

access to these reports.”

In addition to strongly defending on the merits of the

reverse FOIA action, we believe that the litigation

strategy we adopted in Delaware was completely con-

sistent with our position that the requested documents

should be disclosed. This Court has suggested that the

government's failure to appeal the preliminary injunction,

tp—avbitiniaoaemp.es

11. The government, of course, did not concede that the other

necessary requirements for preliminary injunctive relief were met.

To the contrary, we ames t the companies had failed to demon-

strate that they would be -y oy ed if the preliminary

injunction did not issue, and that the granting of the injunction

would net be in the public interest.

12. As we noted on p. 8, n. 3 of our appellees’ brief, the govern-

ment’s decision not to contest the issuance of TRO’s was a good

faith decision that the government's position favoring disclosure

could best be represented by su of a brief fully setting

forth the positions described above.

Government's Petition for Rehearing 63a

or to request the district court to take further action in the

case, indicates a lack of good faith on behalf of govern-

ment counsel. This suggestion is unfair, and should be

corrected. The question whether to seek interlocutory

review of the preliminary injunction was carefully con-

sidered by government counsel, and was only rejected by

the Solicitor General of the United States after it was con-

cluded that such an appeal would clearly be futile.” A

preliminary injunction can only be reversed for a clear

abuse of discretion. See A. O. Smith v. F. T. C., 530 F. 2d

515 (C. A. 3, 1976). On the facts of this case, the Solici-

tor General did not believe we could convince the Third

Circuit that Judge Latchum’s decision to preliminarily

enjoin disclosure was beyond the boundaries of his au-

thority. For example, given the fact that the accident

reports admittedly contained inaccuracies, we did not be-

lieve it was possible to show that the public would suffer

irreparable harm if the documents were not immediately

disclosed. This conclusion was bolr*ered by the fact that

the terms of the preliminary injunction did not prevent

the Commission itself from using the information to de-

velop safety standards. Furthermore, there was nothing

improper about the government filing an interlocutory

appeal from the preliminary injunction, and then moving

to have that appeal dismissed. It is a common and neces-

sary practice for the government to file protective notices

of appeal while the Solicitor General’s office is deciding

whether to actually prosecute an appeal. If the decision

is made not to appeal, the government routinely files a

motion to have the appeal dismissed. There is nothing

sinister about this practice, and that is all that happened

in this case.

13. See 28 C. F. R. 0.20(b) which vests the Solicitor General

with authority to decide whether to prosecute government appeals

to appellate courts.

64a Government's Petition for Rehearing

Finally, we believe that it was perfectly reasonable

for the government not to have encouraged the Delaware

court to take further action in this case until a decision

could be reached in the related case of Pierce and Stevens

Chemical Corp. v. CPSC, W. D. N. Y., Civil No. 1975-410.

Contrary to what this Court has stated in its opinion, slip

op., p. 14, the Delaware court in effect did rule on the

merits of the manufacturers’ claim when it granted pre-

liminary relief. The court did so by ruling against the

government on the legal issue which we believe is central

to this case, namely, the applicability of 15 U. S. C.

2055(b)(1) to an FOIA request. In light of that fact, we

have no doubt that, had the matter at that time been

brought to a final hearing, the court in all likelihood would

have made its preliminary injunction permanent.’* On

the other hand, if the Pierce and Stevens court, which was

faced with the same question, ruled that § 2055(b)(1)

was not applicable, we believed that our chances of pre-

vailing in Delaware would be significantly improved. For

this reason, it was our considered opinion that our chances

of prevailing on the merits in Delaware would be en-

hanced if the court postponed its final hearing. We be-

lieve this decision was perfectly logical, and bespeaks of

the good faith of government counsel in attempting to

litigate from a position of strength, not weakness, in the

Delaware court."*

see hap ow bade cham ty ae anendient 108

552(b)(3), which supports our position that § 2055(b) (1

applicable to FOIA requests.

15. The delay in Delaware was clearly not the result of any

collusion between government counsel and counsel for the television

manufacturers, as this Court appears to suggest. in our

view, the best strategy for the manufacturers to have

would have been to seek an immediate hearing on the motion for a

permanent injunction, which at that time probably would

Government's Petition for Rehearing 65a

We need only add that if plaintiffs’ able and experi-

enced counsel had the slightest difficulty in accepting the

government's litigation strategy in Delaware, they had a

complete remedy by means of intervention in the Dela-

ware case. Instead, plaintiffs’ counsel deliberately chose

—according to their own admission at oral argument—to

stay out of the Delaware court for purely tactical reasons.

It is thus particularly unfair for this Court to couple its

attack on the government’s handling of the Delaware case

with reliance upon “the absence from the Delaware pro-

ceedings of any party requesting disclosure” (opinion,

p. 17).

The petition for rehearing should be granted and the

Court should withdraw its opinion of July 5, 1977. In

addition, we submit that the Court should affirm the order

of the district court dismissing the complaint.

Respectfully submitted,

[Signatures of Counsel Deleted]

&

8

E

66a Response to Petitions for Rehearing

IN THE

UNITED STATES COURT OF APPEALS

For THe District or CoLtumsia Circurr

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

vo.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

APPELLANTS’ RESPONSE TO PETITIONS FOR

REHEARING.

On July 5, 1977, this Court issued an opinion revers-

ing the District Court’s order dismissing the complaint and

remanding the case for a determination on the merits of

plaintiffs’ Freedom of Information Act (“FOIA”) claim.

Thereafter, appellees filed petitions for rehearing, includ-

ing in some cases suggestions for rehearing en banc. On

July 25, this Court entered an order directing that appel-

lants respond to those petitions on or before August 22nd.

For the reasons set forth below, the petitions should be

denied, except insofar as they seek a modification of the

Court's direction to the District Court to proceed directly

to the merits of plaintiffs’ claims. As to that portion of the

judgment, a minor modification is appropriate to account

for the fact, which appellees should previously have made

known to the Court, that the Delaware action was not

closed out completely as it reasonably appeared to the

Court and appellants to be.

Response to Petitions for Rehearing 67a

The decision appealed from dismissed this FOIA

action because it found there to be no “case or contro-

versy” under Article III of the Constitution. This Court

reversed that determination for reasons set forth at pages

10-13 of its opinion. Specifically, it found that the dis-

agreement over the effect of the Delaware proceeding was

sufficient to satisfy Article III, and then went on to discuss

“a second, independent reason for rejecting appellees’ con-

tention that a case or controversy is lacking.” Slip Op. at

12. It is this second independent reason which appellees

attack as being based on the erroneous assumption that

the Delaware case was closed out; nothing in their peti-

tions raises any new matters concerning the first reason

which is alone sufficient to require reversal.

In this connection it is appropriate to say a word

about the confusion as to the meaning of what the District

Court in Delaware did in its Order of August 20, 1976,

closing out that case, at least for some purposes. Since

only appellees were parties to that proceeding, it was

plainly incumbent upon them to advise the Court fully as

to its status. In particular, when questions were raised

about the August 20th Order at oral argument, a request

should have been made then, and not after the July 5th

ruling, to supplement the record with copies of the appro-

priate papers from the Delaware case. Had that been

done, none of these supplementary proceedings would

have been necessary.

Nonetheless, regardless of questions of responsibility,

it does appear to appellants from the papers submitted on

rehearing, that the Delaware action is now alive. If that

is correct, it does not change the basic ruling of this Court

that the District Court was in error in finding no case or

controversy. It merely goes to the question of what relief

is appropriate on remand since the closing of the Dela-

68a Response to Petitions for Rehearing

ware action was only one of two reasons the Court gave

to support its finding that a live controversy existed.

Therefore, that portion of the opinion which denied the

District Court the discretion to proceed in any manner

except on the merits should be deleted, and the case re-

manded for further proceedings consistent with the opinion,

in particular the Court’s conclusion that “the pro-dis-

closure position was all but unrepresented” in the Dela-

ware proceeding. Slip Op. at 17.

Although there is a theoretical possibility that a

conflict between the actions of the two District Courts

may arise, the likelihood of that occurring has been

diminished because the Government has moved to transfer

the Delaware action to the District of Columbia which is

the only jurisdiction in which all parties can be joined.

(Gov't. Pet. at 4).’. If that motion is granted, the two

cases can be consolidated, and the parties can proceed to

the merits. If transfer is not granted, there are other ways

in which the matter can be resolved, none of which bear

on the only issue before this Court, which is whether there

is an Article III case or controversy in this case.

Another point should be made regarding the Govern-

ment’s defense of the Delaware action which demonstrates

the need to join all parties in that case under Rule 19.

Regardless of whether the Delaware action was technically

closed, it was clearly closed for all practical purposes since

the defendants failed to carry their appeal forward and

failed to proceed to obtain a final judgment in the Dela-

ware District Court from which another appeal could be

taken. It is simply no answer to say that defendants

1. In light of the prior history of this case, it would seem

propriate that all papers related to that motion should be filed

this Court so that there is no question as to their effect and

Response to Petitions for Rehearing 69a

waited for over a year for the outcome of a case in the

Western District of New York (Gov't Pet. at 13-14), for

if the trial judge in Delaware was unpersuaded by the

arguments of defendants on the motion for a preliminary

injunction, the decision of another district judge is un-

likely to change his views. Moreover, it does rot explain

the failure of defendants to take discovery which they

recently claimed is essential to their defense. (Tr. of

July 11, 1977 Hearing in Delaware District Court, at 8).

And, perhaps most important of all, they did absolutely

nothing to reopen the case when Congress made a major

amendment to the third exemption to the FOIA in Sep-

tember 1976, which they admit “has undermined the legal

_ basis for the court’s preliminary injunction order. . . .

(Gov't. Pet. at 4, n. 2). See also GTE Sylvania Inc. v.

Consumer Product Safety Comm., 404 F. Supp. 352, 370

(D. Del. 1975). '

All of these matiers are offered not to criticize govern-

ment counsel or to engage in second-guessing of their liti-

gation strategy. They are offered to show that Federal

agencies cannot adequately represent requesting parties in

reverse FOIA cases and that the only way such cases will

be fully and fairly litigated is by having known requesters

joined under Rule 19. Unless they are made parties, any

judgment obtained is not binding on them, and they con-

tinue to have a live dispute with the agency withholding

the documents. Slip Op. at 11. That fundamental con-

clusion was the premise underlying this Court’s ruling of

July 5th, and the fact that the Delaware action is still

technically alive does not constitute a defense to the erro-

neous dismissal by the District Court for the District of

Columbia.

For the foregoing reasons, rehearing should be denied

except to the limited extent of modifying the direction to

70a Response to Petitions for Rehearing

the District Court to proceed directly to the merits of the

controversy.”

Respectfully submitted,

[Signatures of Counsel Deleted]

2. Nothing in the petitions of the manufacturing defendants

ably meets the standards of Rule 35 F. R. A. P., or Rule 14

(a9(3) of this Court for en banc consideration.

Order of the Court of Appeals Denying Rehearing 7la

IN THE

UNITED STATES COURT OF APPEALS

For THE Districr or CoLumBiA Circuit

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

Before: BazELon, Chief Judge, and Wricut and

Rosinson, Circuit Judges.

Order.

After considering the applications for rehearing filed

by federal appellees, appellees Aeronutronic Ford Corpo-

ration, et al., appellees Admiral Corporation, et al., and

appellee RCA Corporation, together with supporting

memoranda, and appellants’ response, it is

Orperep by the Court that the applications for re-

hearing are denied for the reasons stated in the attached

per curiam.

Per Curiam

For the Court

George A. Fisher, Clerk

By: Rosert A. BONNER

Robert A. Bonner

Chief Deputy Clerk

72a Order of the Court of Appeals Denying Rehearing

Per Curiam: On June 14, 1974 appellants sought

production of the documents in suit here under the Free-

dom of Information Act. Instead of producing the docu-

ments after determining that the Act required production,

appellee Consumer Product Safety Commission (CPSC)

notified intervenors of their intention to do so. Where-

upon intervenors filed injunction proceedings against the

CPSC in various district courts, including the District of

Delaware, seeking to prevent production. Subsequently,

the District Court in Delaware issued a preliminary injunc-

tion precluding production. Later that court ordered the

case closed with the preliminary injunction stil] pending.

This appeal is from the dismissal of appellants’ FOIA

case by the District Court here on the ground that no case

or controversy existed since the CPSC agrees with appel-

lants that the documents should be produced but is pre-

vented from doing so by the preliminary injunction in the

“closed” Delaware case. We reversed, holding that a case

or controversy did indeed exist because CPSC continues

to refuse to produce the documents.

Since our ruling we are advised that the Delaware

case was marked “closed” for statistical reasons in that the

case had been inactive for some time. Also, within a few

days after our ruling, the Delaware case suddenly became

active with a hearing in court, at which a date for trial on

the merits was set. Appellants here, however, who have

been attempting since 1974 to obtain production of the

documents under FOIA, and against whom the Delaware

litigation is directed, are not parties to the Delaware litiga-

tion. See Rule 19, Fed. R. Civ. P. Since all necessary

parties are before the District Court here, there appears no

reason why the litigation should not proceed here, par-

ticularly since this is the venue authorized by the FOIA.

Order of the Court of Appeals Denying Rehearing 73a

5 U.S. C. § 552(a)(4)(B) (Supp. IV, 1974).° Since the

Act also provides that actions under it should be expedited,

5 ae C. § 552(a)(4)(D) (Supp. IV, 1974), at long last

so be it.

So ordered.

* It is noteworthy that the ent of Justice has moved

to transfer the oe see lhagmedigedh omer lumbia.

Order of the Court of Appeals

74a Denying Rehearing En Banc

IN THE

UNITED STATES COURT OF APPEALS

For THE Districr oF COLUMBIA CIRCUIT

No. 75-2059

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

Before: BazELon, Chief Judge, Wricut, TAM,

LEVENTHAL, Ropinson, MACKINNON, Ross and

Wuxey, Circuit Judges.

Order.

On consideration of the suggestions for rehearing en

banc, and no judge in regular active service having re-

quested a vote thereon, it is

Orverep by the Court, en banc, that the aforesaid sug-

gestions are denied.

Per Curiam

For the Court:

George A. Fisher, Clerk

By: Rosert A. BONNER

Robert A. Bonner

Chief Deputy Clerk

Opinion of the District of Columbia District Court 75a

IN THE

UNITED STATES DISTRICT COURT

For THE Districr or COLUMBIA

Civil Action No. 75-705

CONSUMERS UNION OF UNITED STATES, INC.,

et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

September 11, 1975

Opinion.

Ricuey, District Judge.

Plaintiffs Consumers Union of United States, Inc., and

Public Citizens’ Health Research Group filed this action on

May 5, 1975, seeking access under the Freedom of Infor-

mation Act, 5 U. S. C. § 552, to certain reports on television

accidents submitted to the Consumer Product Safety Com-

mission (CPSC ) by various television manufacturers. The

defendants in this case are the CPSC, its Chairman, Com-

missioners, and Secretary; and twelve television manutac-

turers which submitted the reports in question. The plain-

tiffs seek relief in the following form: (a) a declaration

that the requested documents, currently in possession of

the CPSC, must be made immediately available to the

plaintiffs for inspection and/or copying; and (b) an in-

junction enjoining the CPSC and its agents and employees

from failing to make the requested documents immediately

available to plaintiffs for inspection and/or copying.

76a Opinion of the District of Columbia District Court

The case is currently before the Court on the motions

of ten television manufacturers to dismiss or, in the alter-

native, to stay these proceedings.’ The defendants claim

that with respect to the Government, the complaint fails

to present a “case or controversy” within the meaning of

Article III, section 2 of the United States Constitution,’

and that with respect to the manufacturers the complaint

fails to state a claim upon which relief can be granted.

The defendant-manufacturers also claim that because a

similar action involving virtually the same issues is pend-

ing in the United States District Court for the District of

Delaware, this action should be dismissed in the interests

of comity and judicial economy.

I. Background.

A somewhat complex course of events provides the

background for this action. In May, 1974, the CPSC is-

sued special orders to television manufacturers requesting

that they submit, inter alia, all accident reports collected

by the manufacturers since the National Commission on

Product Safety held certain hearings in 1969. The CPSC

also invited the manufacturers to indicate which, if any, of

the reports they submitted were, in the manufacturers’

view, entitled to exemption from disclosure under the Free-

dom of Information Act (FOIA). In June, 1974, plain-

tiffs herein requested access, under the FOIA, to the

documents submitted by the manufacturers in response to

the CPSC’s orders of the previous month. While the

1. Defendants Admiral, Aeronutronic Ford, General Electric,

GTE Sylvania, Magnavox, — Sharp, Toshi Warwick and and

Zenith have so moved. Motorola,

Matsushita, and the CPSC, have in fect so moved by praying for

dismissal in their answers to the plaintiffs’ complain

5 the Siteed itches tis GA A oo ei See

note 1, supra, and Answer of the Consumer Product Safety Com-

mission at “First Defense”.

Opinion of the District of Columbia District Court T7a

plaintiffs were given access to those reports for which con-

fidentiality was not claimed by the manufacturers, the

plaintiffs were not immediately afforded access to the

documents which the manufacturers claimed were exempt

from the FOIA. Instead, the CPSC, in August, 1974, in-

formed the manufacturers of the plaintiffs’ FOIA request

and directed the manufacturers to substantiate their claims

of confidentiality. In the meantime, the CPSC had deter-

mined, in July, 1974, that the manufacturers’ response to

its first request for documents was not complete; the CPSC

ordered the manufacturers to make further submissions

and extended the plaintiffs’ FOIA request to the additional

data submitted by the manufacturers. Plaintiffs subse-

quently limited their request to exclude documents pro-

tected by the attorney-client privilege or the work-product

doctrine and those portions of documents which contained

the names and addresses of accident victims. -

With their request still unanswered, plaintiffs in-

formed the CPSC in October, 1974, that any further delay

would be considered by the plaintiffs as a denial of their

request under the FOIA. As a result of that communica-

tion, representatives of the plaintiffs and the CPSC met

in November, 1974, and agreed upon a timetable for the

completion of CPSC’s review of the voluminous submis-

sions. It was estimated that the CPSC’s legal determina-

tion as to the availability of the requested documents

would be completed by mid-March of 1975. Plaintiffs

acquiesced in that timetable, but expressly reserved the

right to consider additional delay as a denial of their

request.

On March 28, 1975, the CPSC issued its legal deter-

mination that the documents requested by the plaintiffs

did not fall within the exemptions of the FOIA and that,

even if the data were exempt, disclosure by the CPSC was

78a Opinion of the District of Columbia District Court

nonetheless within its discretion and, in this case, appro-

priate in the interest of public health and safety. The

CPSC subsequently notified the television manufacturers

of its decision to release the requested documents and of

its intention to withhold disclosure until May 1, 1975.

Upon said notice, seven of the defendant television manu-

facturers filed separate actions against the CPSC in the

United States District Court for the District of Delaware,’

each seeking an injunction prohibiting disclosure on the

grounds that the release of the documents is barred by the

exemptions to the FOIA and certain portions of the Con-

sumer Product Safety Act, 15 U. S. C. § 2051 et seq. Five

other television manufacturers filed similax separate ac-

tions in the United States District Court for the Southern

District of New York,* the United States District Court for

the Northern District of New York,* and the United States

District Court for the Western District of Pennsylvania.*

In all of the actions, the manufacturers applied for tem-

porary restraining orders prohibiting the release of the

documents pending determination of their motions for

preliminary injunction. The CPSC consented to the tem-

porary restraining order in at least some of the cases."

3. The following manufacturers filed actions in the District of

Delaware: GTE Sylvania (C. A. No. 75-104), RCA (C. A. No.

75-108), Magnavox (C. A. No. 75-112), Zenith, (C. A. No. 75-113),

Motorola (C. A. No. 75-114), Warwick (C. A. No. 75-115), and

Aeronutronic Ford (C. A. No. 75-116).

4. Matsushita (C. A. No. 75-2040), Sharp (C. A. No. 75-2049),

Southern

and Toshiba (C. A. No. 75-2050), actions in the

District of New York.

5. General Electric (75-CV-189) filed suit in the Northern

District of New York.

6. Admiral (C. A. No. 75-531) filed suit in the Western District

of Pennsylvania.

7. The plaintiffs claim that the agency consented to the orders

in all of the cases filed by the manufacturers. P complaint

at { 11. The CPSC claims that it consented to some but not all of

Opinion of the District of Columbia District Court 79a

The instant action was filed on May 5, 1975. Subse-

quently, the individual actions filed by the television

manufacturers were consolidated in the District of Dela-

ware.* Oral arguments on the preliminary injunction mo-

tion in the consolidated cases were heard by Chief Judge

Latchum in July, 1975. The documents in question in

both this action and the consolidated cases in Delaware

remain in the possession of the CPSC and subject to the

above-mentioned restraining orders pending Judge Latch-

um’s decision on the motion for preliminary injunction.’

II. No Case or Controversy Exists Between Plaintiffs and

the CPSC.

Plaintiffs invoke the jurisdictional sections of the

FOIA, 5 U. S. C. §552(a)(3), and the Administrative

Procedure Act, 5 U. S. C. § 702, as bases for this Court's

jurisdiction in this case." Both statutes pertain to actions

against federal agencies. In this case, plaintiffs seek an

order instructing the agency to provide plaintiffs access to

the documents in question for inspection and/or copying.

At the heart of plaintiffs’ claim is their contention that

the documents are subject to mandatory disclosure under

7. (Cont'd. )

the orders. Answer of the Consumer Product Safety Commission

at J 11. For purposes of this motion to dismiss, plaintiffs’ allega-

tions are taken as true.

8. In re: Consumer Product Safety Commission ation,

Civil Action Nos. 75-104, 75-108, 75-112, 75-113, 75-114, 75-115,

75-116, 75-122, 75-131, 75-136, 75-150, 75-151, 75-152 (D. Del.).

9. The statement of facts above is drawn from all of the sub-

stantive pleadings in this case.

10. Plaintiffs also invoke the Declaratory Judgment Act, 2°

U. S. C. § 2201-02, as a for this Court's jurisdiction, plain-

tiffs’ complaint at { 2. Declaratory Judgment Act is not, how-

ever, a statute which confers jurisdiction. See, e.g., Skelly Oil Co.

v. Phillips Petroleum Co., 339 U. S. 667 (1950).

80a Opinion of the District of Columbia District Court

the FOIA." The defendant agency, however, came to

the exact same conclusion in its above-mentioned formal

finding of March 28, 1975. The CPSC and the plaintiffs

thus stand in the same position on the crucial issue in this

case.

The Constitution extends federal courts’ jurisdiction

only to specified cases and controversies."* Implicit in the

“case and controversy” doctrine is the requirement that

litigation must arise “between adverse litigants.” Muskrat

v. United States, 219 U. S. 346, 361 (1911); Aetna Life

Insurance Co. v. Hawarth, 300 U. S. 227 (1937). Where

opposing litigants desire “the same result,” as here, there

is “no case or controversy within the meaning of Art. III

of the Constitution.” Moore v. Charlotte-Mecklenburg

Board of Education, 402 U. S. 47, 48 (1971); General

Electric Co. v. Bootz Mfg. Co., 289 F. Supp. 504 (D.

Ind. 1968). This Court is faced with the prospect in the

instant action that both the plaintiffs and the CPSC will

submit briefs urging the same conclusion as to the avail-

ability of the documents under the FOIA. In such a pos-

ture, this case does not present a question “in an ad-

versary context,” as required by the Constitution. Flast

v. Cohen, 392 U. S. 83, 95 (1968).

Plaintiffs contend, however, that the “controversy”

which they present as between themselves and the agency

centers on the agency’s failure to contest the temporary

restraining orders issued in the now-consolidated cases

brought by the manufacturers. According to the plain-

tiffs, the agency’s failure to contest the orders constituted

a violation of the agency’s duty under the FOIA to speed-

ily deliver the documents in question once a determination

11. See plaintiffs’ complaint at { 13.

12. U. S. Const., art. ITI, §2. See Golden v. Zwickler, 394

U. S. 103 (1969); Baker v. Carr, 369 U. S. 186 (1969).

Opinion of the District of Columbia District Court 8la

was made that such documents were subject to disclosure.

Plaintiffs also allege that the agency's failure to contest

the orders reflects a certain lack of good faith toward the

plaintiffs.

As an initial matter, this Court notes, admittedly

without having all of the facts before it,"* that it does

seem curious that the agency, having just completed a

nine-month legal investigation which led to the conclu-

sion that the documents were available under the FOIA,

failed to make even a pro forma opposition to the motions

for restraining orders. However, regardless of any pos-

sible impropriety on the agency’s part, its failure to con-

test the motions does not present a “controversy” between

plaintiffs and the CPSC in this case. Plaintiffs do not ask

for a mere declaration that the agency “shouldn't have”

consented to the orders—it is doubtful, in fact, that such

a “wrong” would be actionable. Plaintiffs ask instead that

the agency be ordered to release the documents to the

plaintiff, and a decision to that effect made by this Court

would necessarily entail a determination that the docu-

ments are subject to disclosure under the FOIA. As dis-

cussed above, there is no adversity between the agency

and the plaintiffs, and thus no case or controversy, with

respect to the FOIA issue.

Plaintiffs point to the case of Robertson v. Depart-

ment of Defense, Civil No. 74-644 (D. D. C., June 19,

1975), in support of their claim that a controversy exists

in the instant action. Robertson involved a very similar

fact situation to this case. The General Motors Corpora-

tion had submitted certain documents to the Department

of Defense which Robertson subsequently requested, for

purposes of inspection, under the FOIA. The Department

determined that some but not all of the documents were

13. See note 7, supra.

82a Opinion of the District of Columbia District Court

subject to FOIA disclosure. General Motors thereupon

sued the Department and other federal defendants in the

United States District Court for the Eastern District of

Virginia, seeking an injunction against the disclosure of

the documents. Robertson countered by filing an FOIA

suit against the Department and General Motors in this

Court. In allowing the plaintiff to maintain suit, Judge

Barrington D. Parker pointed out what is, for purposes of

the instant case, the crucial characteristic of Robertson:

“{I]n the Virginia proceeding and in the matter before

this Court, the government has never taken the position

espoused by Robertson—that the documents, in their en-

tirety, are obtainable under the Act.” Memorandum

Opinion of June 19, 1975, at 8. In Robertson, unlike the

instant action, there were areas of disagreement between

the plaintiff and the governmental defendant.”*

In essence, what the plaintiffs ask this Court to do in

the instant case is to re-determine whether the restrain-

ing orders obtained by the manufacturers in various fed-

eral district courts should have issued. It is true that the

CPSC consented to the various orders. Nonetheless, it

was the responsibility of each court—and this Court cannot

but assume that said responsibility was met—to make an

independent determination that an order was justified.

See, e.g., Judge Latchum’s Temporary Restraining Order

of April 23, 1975, in RCA Corp. v. United States Consumer

Product Safety Commission, Civil No. 75-108 (D. Del.

filed April 22, 1975). As the United States Court of Ap-

14. Plaintiffs also question the genuineness of the agency's

conclusion on the FOIA issue: “[E]ven if the Commission should

prevail in the Delaware action, it could then decide as a discretion-

ary matter to refuse to disclose the data to plaintiffs.” Plaintiffs’

Motion for Summary Judgment at 43 n. * *. But the agency has

assured the Court on the public record that “disclosure will be made

as soon as the federal defendants are not enjoined from doing so.”

CPSC’s Answer at { 13.

Opinion of the District of Columbia District Court 83a

peals for the District of Columbia Circuit has noted, “in

the interests of comity and the orderly administration of

justice we should not attempt to reexamine . . . matters

considered and resolved by . . . a court having authority

equal to our own.” Hilton Hotels Corp. v. Weaver, 325

F. 2d 1010 (1963), cert. denied, 376 U. S. 951 (1964)

(footnote omitted ).

Ill. Plaintiffs’ Complaint Fails to State a Claim Against

the Defendant-Manufacturers Upon Which Relief

Can Be Granted.

As noted above, this case is brought under the FOIA

and the Administrative Procedure Act. Those statutes

entitle a claimant to relief against federal agencies and,

accordingly, plaintiffs’ complaint is styled to request relief

from inaction by the CPSC. Plaintiffs have also named

twelve television manufacturers as defendants in this case,

but no relief is requested from the manufacturers. In-

deed, the manufacturers are in no position to provide relief

inasmuch as the documents in question are in the posses-

sion of the agency. Thus, as to the defendant-manufac-

turers, plaintiffs “can prove no set of facts in support of

[their] claim which would entitle them to relief.” Conley

v. Gibson, 355 U. S. 41, 45-46 (1957). The defendant-

manufacturers would thus seem to be entitled to dismissal

under Fed. R. Civ. P. 12(b)(6) because of plaintiffs’ fail-

ure to state a claim upon which relief can be granted.

Plaintiffs maintain, however, that because the de-

fendant-manufacturers have such a strong interest in the

outcome of this litigation, they are subject to suit under

the compulsory joinder provision of Fed. R. Civ. P. 19(a).

Assuming arguendo that Rule 19(a) could be so employed

in the current litigation, the plaintiffs would nonetheless

be faced with an uncleared hurdle: lack of jurisdiction.

84a Opinion of the District of Columbia District Court

As noted in the preceding section, there is no case or con-

troversy between plaintiffs and the federal defendant.

Lack of a case or controversy is a jurisdictional defect.

See Aetna Life, supra; Tilley Lamp Co. v. Thacker, 454

F. 2d 805, 808 (5th Cir. 1972). Plaintiffs have suggested

that “even assuming arguendo that no live case or con-

troversy existed between plaintiffs and the Commission,

nothing is clearer than that a very live case or controversy

exists between plaintiffs and the manufacturers.” Plain-

tiffs’ Motion for Summary Judgment at 35. Plaintiffs

would thus provide the missing jurisdictional ingredient

of case or controversy by joining, under Rule 19(a), the

defendant-manufacturers who certainly possess an interest

adverse to plaintiffs’ in this litigation. The plaintiffs’ solu-

tion is ingenious but unfortunately not authorized by

Rule 19, which is “predicated upon the preexistence of

federal jurisdiction over the cause of action . . .” Letmate

v. Baltimore and Ohio R. R., 311 F. Supp. 1059, 1062 (D.

Md. 1970). Rule 19 canot be used “in a way that would

extend the subject matter jurisdiction of the Federal

courts; indeed, Rule 82 precludes any construction of the

Rule that would have such an effect.” 7 Wright and

Miller, Federal Practice and Procedure § 1602, at 20 (foot-

note omitted ); see also Anderson v. United States, 217 F.

Supp. 814 (E. D. Pa. 1963).

IV. Conclusion.

Plaintiffs’ complaint must therefore be dismissed for

failure to present a case or controversy as to the federal

defendant and failure to state a claim upon which relief

can be granted as to the defendant-manufacturers. In

15. Defendant-manufacturer Warwick has moved for dismissal

on the additional grounds that this Court lacks personal jurisdiction

over Warwick. In view of the Court’s disposition of this case, it is

unnecessary to consider Warwick's motion.

Opinion of the District of Columbia District Court 85a

reaching this conclusion, the Court notes that it is especially

reluctant to bar the courthouse door when the plaintiff is,

as in the instant case, a representative of the public inter-

est. But the Constitution demand: no less, considering the

present posture of this case.

The Court is aware of the possibility that plaintiffs

failed to intervene in the Delaware proceedings in the hope

that this Court would assume jurisdiction in the present

case. In declining to do so, this Court in no way intends

to prejudice any future efforts plaintiffs might make to

intervene in the Delaware proceeding.

An order in accordance with the foregoing Memoran-

dum Opinion will be issued of even date herewith.

/s/ Cuarves R. RicHEey

Charles R. Richey

United States District Judge

Dated: September 11, 1975

86a Order of the District of Columbia District Court

IN THE

UNITED STATES DISTRICT COURT

For THE District or COLUMBIA

Civil Action No. 75-705

CONSUMERS UNION OF UNITED STATES,

INC., et al.

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.

Order.

This case has come before the Court on the motions

of various defendants to dismiss and the plaintiffs’ oppo-

sition thereto. The Court has considered the extensive

pleadings filed by the rarties in this case, and for the

reasons set forth in the memorandum opinion of the Court

of even date herewith, concludes that the case should be

dismissed because: (a) as to the federal defendant, plain-

tiffs do not present a case or controversy within the mean-

ing of Article III, section 2 of the United States Consti-

tution; and (2) as to the defendant-manufacturers,

plaintiffs do not state a claim upon which relief can be

granted.

Therefore, it is, by the Court, this 11th day of Sep-

tember, 1975,

OrvERED, that defendants’ motion to dismiss be, and

the same hereby is, granted; and it is

FurTHER OrpeERED, that this case be, and the same

hereby is, dismissed.

/s/ CHarves R. RicHey

Charles R. Richey

United States District Court

Opinion of the Delaware District Court

Granting Preliminary Injunction 87a

IN THE

UNITED STATES DISTRICT COURT

For THE Districr oF DELAWARE

Civil Action No. 75-104

GTE SYLVANIA INCORPORATED

v.

CONSUMER PRODUCT SAFETY COMMISSION, et al.*

October 23, 1975

Opinion.

Latcuum, Chief Judge.

In these thirteen separate actions, each plaintiff, a

manufacturer of television receivers, seeks a preliminary

injunction restraining the Consumer Product Safety Com-

mission (“Commission”), its members and officers from

disseminating certain information to the public which the

plaintiffs contend is privileged, confidential, misleading

and inaccurate.

Congress, in 1972, enacted the Consumer Product

Safety Act (the “Act”), 15 U. S. C. § 2051 et seq., in order

to “establish comprehensive and effective regulation over

the safety of unreasonably hazardous consumer products.” *

* Consolidated with, RCA Corp., 75-108; Magnavox Co., 75-

112; Zenith Radio Corp., 75-113; Motorola, Inc., 75-114; Warwick

Electronics, Inc., 75-115; Aeronutronic Ford Corp., 75-116; Tele-

dyne Mid-America Corp., 75-122; Admiral Corp., 75-)31; General

Electric Co., 75-136; Matsushita Electric Corp. of America, 75-150;

Sharp Electronics Corp., 75-151; and Toshiba America, Inc. v. Con-

sumer Product Safety Commission, 75-152.

1. H. R. ae oe 1153, 92d Cong., 2d Sess. 26 (1972). The

of the are:

“(1) to protect the public against unreasonable risks of

tapury acenclaled with pol samme products;

Opinion of the Delaware District Court

88a Granting Preliminary Injunction

To implement and administer this legislative policy, the

Act established the Commission as an independent regu-

latory agency. Shortly after its creation, the Commission

became concerned about the safety of television sets.

During the spring and summer of 1974, the Commissicn

sought and obtained television-related accident data from

television manufacturers in three ways: by a general pub-

lic request for information, by a special order pursuant to

15 U. S. C. § 2076(b)(1), and finally by the issuance of

subpoenas duces tecum pursuant to 15 U. S. C. § 2076

(b)(3). Upon receipt of such information, the data was

consolidated and a computer printout was prepared which

listed the alleged accident separately. On March 28, 1975,

the Commission decided to release to the public the bulk

of the television-related accident material in its possession

which it had gathered from the plaintiffs.

Subsequently, each of the thirteen plaintiffs brought a

suit against the Commission * for an injunction prohibiting

the public dissemination of the information obtained from

each on the ground that such information was privileged,

confidential, misleading and inaccurate. The thirteen

1. (Cont’d.)

(2) to assist consumers in evaluating the comparative

safety of consumer products;

(3) to develop uniform safety standards for consumer

products and to minimize conflicting State and local regula-

tions; and

(4) to promote research and investigation into the causes

and prevention of product-related deaths, illnesses, and in-

juries.” 15 U. S. C. §2051(b).

2. In addition to the Commission, the following members,

officers and employees were named as defendants: Richard O.

Simpson, Chairman, Constance B. Newman, Vice Chairman, R.

David Pittle, Lawrence M. Kushner, Barbara Hackman Franklin,

Commissioners, Sadye E. Dunn, Secr , and Vince DeLuise,

Freedom of Information Officer. Th be referred to collec-

tively as the “Commission” or “defendants.”

Opinion of the Delaware District Court

Granting Preliminary Injunction 89a

actions were consolidated * for a hearing on plaintiffs’ mo-

tions for preliminary injunctive relief. The defendants also

consented to the entry of a temporary restraining order *

prohibiting the public disclosure pending the Court’s de-

cision on plaintiffs’ present motions.*

I. Background

In March 1974, the Commission issued a public

notice ° announcing that it would hold a public hearing to

investigate the hazards encountered during the operation

of television receivers and to consider the necessity of de-

veloping safety standards for such receivers. By this

notice, the Commission sought certain technical informa-

tion and TV-related accident data from manufacturers of

television sets and the component parts thereof. The

notice described the accident data sought in part as

follows:

“Although the hearing is intended to emphasize

fires and shocks related to TV sets, information per-

taining to all aspects of TV set safety may be sub-

mitted (with the exception of radiation hazards . . .).

3. Docket Item 10 (C. A. No. 75-104).

4. Docket Item 3 (C. A. No. 75-104). The tem restrain-

ing order was later modified to t release of the gathered

i ation to four employees of Underwriters Laboratories, Inc.,

which had been retained by the Commission to develop safety

standards for television receivers. In addition the data without

identification of manufacturer, model or chassis number was au-

thorized to be released to Underwriters Laboratories, Inc. and

other individuals involved in developing the safety standards.

Docket Item 34 (C. A. No. 75-104).

5. Defendants also moved for summary judgment in each case

(Docket Item 35, C. A. No. 75-104), but these motions are not

1 alae aca (Docket Item 42, p. 3, C. A. No.

6. 39 Fed. Reg. 10929 (March 22, 1974).

Opinion of the Delaware District Court

90a Granting Preliminary Injunction

. In particular, each TV manufacturer is requested

to submit all accident reports collected since the 1969

hearings held by the National Commission on Prod-

uct Safety. If present data recording procedures dif-

fer from the method proposed in the 1969 “Electronic

Industry Ad Hoc Engineering Report on Television

Fires’ which was submitted to the National Commis-

sion on Product Safety, place (sic) indicate the pro-

cedures used.” *

Although a few manufacturers complied with the

Commission’s general request for data, their principal

response consisted of a six page summary of accident data

supplied by the Electronics Industry Association

(“EIA”).®

After reviewing the data voluntarily submitted, the

Commission concluded that “the information submitted to

the Commission by the EIA on behalf of the [Companies

did] not satisfy the Commission’s request.”* Thus on

May 13, 1974, the Commission, acting pursuant to 15

U. S. C. §2076(b)(1),”° sent special orders to twenty-

five manufacturers of television receivers and com-

ponents.’ The information sought by these special orders

7. Id. 10930.

8. Par. 5 Affidavit of Constance B. Newman, Vice Chairman

of the Commission (“Newman Affd”) Docket Item 27, C. A. No.

75-112.

9. E.g., Special Order of Commission to General Electric

Company. Docket Item 11A, Ex. A-1, C. A. No. 75-136.

10. 15 U. S. C. § 2076(b)(1) provides: “The Commission shall

have the power—(1) to require, by special or general orders, any

person to submit in writing such reports and answers to questions

as the Commission may prescribe; and such submission shall be

made within such reasonable period and under oath or otherwise

as the Commission may determine.”

11. Of the plaintiffs here, only RCA did not receive a special

order. Newman Affd, par. 6.

Opinion of the Delaware District Court

Granting Preliminary Injunction 9la

was broken down into six categories: (1) TV-related acci-

dent data, (2) Current, future-planned and suggested

TV-related safety standards, (3) Quality control and

quality assurance plans, (4) Service technicians, (5) Im-

provement plans for presently used sets, and (6) Specific

technical areas.”

The instructions for the TV-related accident data

category provided:

“You are requested to submit all accident reports col-

lected since the 1969 hearings held by the National

Commission on Product Safety. If present data re-

cording procedures differ from the method proposed

in 1969 ‘Electronics Industry Ad Hoc Engineering

Report on Television Fires’ which was submitted to

the National Commission on Product Safety, please

indicate the procedures used.” “

In the cover letter '* accompanying the special orders,

the Commission “[recognized] that some of the informa-

tion to be submitted [might] be proprietary” and referred

the manufacturer to certain statutory provisions” de-

signed to protect confidential information supplied to the

government. The Commission encouraged compliance by

stating in the cover letter:

“This information will be received in confidence. It

will not be placed in a public file and will not initially

be made available to the public.”

12. E.g., § Orde

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