# Appendix — GTE Sylvania, Inc. v. Consumers Union of the United States, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2638%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1030 ## Text ) 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 . 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 eh ey ag odad Esra U.S.C. i ue 43 | i uF 3 on 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). s - i 8 gé efi g Sees TA g rit LHe cbtey ul itt eth 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2638%3A3. Public record. Not legal advice.