Petition — Exxon Corp. v. Federal Trade Commission

.” Supreme Court, U, &

FILED

1 JAN 98 1979

4

steamy _MICHARL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1978

‘@8-1176

No.

EXXON CORPORATION AND

KERR-MCGEE CORPORATION,

Petitioners,

On

FEDERAL TRADE COMMISSION, ET AL..,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Respectfully submitted,

ROBERTS B. OWEN

888 16th St., N.W.

Washington, D.C. 20006

Of Counsel:

Steven S. Rosenthal

Patrick M. Norton

Covington & Burling

888 16th St., N.W.

Washington, D.C. 20006

PRESS OF ByrON S. ADAMS, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

Page

I snc 1

a ee eas a's 2

QUESTION PRESENTED .................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

IT SS tee ee ea 3

STATEMENT OF THE CASE ................. 3

RS ew drawn bos 4

2. The Opinions Below ................ &

Reasons for Granting the Writ .............. 11

I. The Challenged Holding Conflicts Not

Only With A Recent Decision Of This

Court But Also With Due Process, Log-

ic, And Other Decisions Of The Court

A Ge Baga & xosid bua s-as 11

II. As Recognized By The Court Below,

The Issue For Which Certiorari Review

Is Now Sought Involves Important

Constitutional Questions Affecting

Legislative Powers And Private Rights,

And The Issue Should Be Resolved By

I ee) pas gee rns 16

III. The Case Presents An Important Issue

Which Is Bound To Recur In A Variety

Of Contexts And Which Thus Calls For

Immediate Resolution By This Court 19

I os oi icy: CBee d's a Sie hh ee one's 8 22

APPENDIX Order of the District Court ....... la

il

APPENDIX Opinion of the Court Of Appeals .. 3a

APPENDIX Denial of Petition for Rehearing ... 25a

APPENDIX Denial of Suggestion for Rehearing

En Banc and Statement of Circuit

Judge Wilkey as to Why He Voted

for Rehearing En Banc .......... 26a

i ca

TABLE OF AUTHORITIES

Page

CASES:

Boddie v. Connecticut, 401 U.S. 371 (1971) .... 138

Chrysler Corp. v. Schlesinger, 565 F.2d 1172 (3d

Cir. 1977), cert. granted sub nom., Chrysler

Corp. v. Brown, 435 U.S. 914 (1978) .... 14,19

Consumers Union of the United States, Inc. v.

Consumer Product Safety Commission,

U.S. App. D.C. __, F.2d (D.C. Cir.

No. 75-2059, Dec. 22, 1978) ........... 14,17

Eastland v. United States Servicemen’s Fund,

421° U.S. 401 (3076) .....5... 4,8,10,11, 12,14

FTC v. Owens-Corning Fiberglas Corporation

CTDEs. Ges. Se TD kaos 6 Eka ve Beewes 20

Federal Trade Commission v. Texaco, Inc., 180

U.S. App. D.C. 390, 555 F.2d 862 (D.C. Cir.

en banc), cert. denied, 431 U.S. 974 (1977) . 15

Fuentes v. Shevin, 407 U.S. 67 (1972) ......... 13

Goss v. Lopez, 419 U.S. 565 (1975) ........... 13

Kilbourn v. Thompson, 103 U.S. 168 (1880) ... 14

McGrain v. Daugherty, 273 U.S. 135 (1927) ... 14

Mathews v. Eldridge, 424 U.S. 319 (1976) ..... 13

Mullane v. Central Hanover Trust Co., 339 U.S.

PE AEE AR Tata eee is Ree 13

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955) 22

United States v. American Tel. & Tel. Co., 179

U.S. App. D.C. 198, 551 F.2d 384 (D.C. Cir.

BO AGA Se cee Oe Ss a 18, 20, 21

iv

United States v. American Tel. & Tel. Co., 185

U.S. App. D.C. 254, 567 F.2d 121 (D.C. Cir.

Rte)... i ee eee. 18

United States Servicemen’s Fund v. Eastland,

159 U.S. App. D.C. 352, 488 F.2d 1252

(1973), rev’d and remanded, 421 U.S. 491

CORES |e a Paes Saas a a ia es 12

Wearly v. Federal Trade Commission (D. N.J. Civ.

Rati Dk Fe Gaiwo en 38 oo oe et eK 10

CONSTITUTION AND STATUTES:

Sh Ge: i te oe ee oe Sets 3

Federal Trade Commission Act

RD pe Es Seek cee ek aa ek 3,9

Administrative Procedure Act

ee BR ee Ca es i 6

Judicial Code

Seer tie SES 6

SS ee ss Sk ee ce ete 6

BB Tea OE 2s hak beeen sa oe 6

90 WE BES oa ie oo 6

Me SE RS ho ce oe ea eRe 6

MUO E Be oS sok 6

CONGRESSIONAL REFERENCES:

Hearings on Oversight of Antitrust Enforcement

Before the Subcomm. on Antitrust and Mo-

nopoly of the Senate Comm. on the Judici-

ary, 95th Cong., Ist Sess. (1977) ......... 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

EXXON CORPORATION AND

KERR-MCGEE CORPORATION,

Petitioners,

Vv.

FEDERAL TRADE COMMISSION, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO ~

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The two petitioners pray that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit

entered October 19, 1978, affirming the dismissal by

the United States District Court for the District of

Columbia of petitioners’ Amended Complaints.

OPINIONS BELOW

The District Court dismissed petitioners’ Amended

Complaints by an order without written opinion dated

March 29, 1977 (App. 1a). The Court of Appeals for

2

the District of Columbia Circuit affirmed the forego-

ing dismissal in an opinion which has not been offi-

cially reported but is set forth in the Appendix (App.

3a-24a).'

On December 6, 1978, when the Court of Appeals

denied petitioners’ request for rehearing and sugges-

tion of a rehearing en banc, one of the judges of that

court (Wilkey, J.) filed a dissenting opinion which is

printed in the Appendix (at 28a-30a). As also reflected

in the Appendix (at 27a), an additional judge (Bazelon,

J.) noted, without opinion, his view that the court

should have reheard the case en banc because of the

importance of the issue involved.

JURISDICTION

The judgment of the Court of Appeals was entered

on October 19, 1978, and a timely petition for rehear-

ing was denied on December 6, 1978 (App. 25a-26a).

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

QUESTION PRESENTED

Where a private person or entity has been com-

pelled to turn over confidential information to a Fed-

eral agency, and where someone connected with Con-

gress (e.g., an individual member of Congress or a

Congressional committee chairperson) then asks the

agency to disclose the confidential information, does

' Petitioners’ applications for a stay pending their appeal to

the Court of Appeals were denied by the District Court (on March

29, 1977), by the Court of Appeals (on May 6, 1977), and by the

Chief Justice of the United States (on May 23, 1977). None of

these orders was accompanied by an opinion.

3

the agency have unfettered power (as held by the

court below) to make the requested disclosure without

giving the owner of the information advance notice

and an opportunity to seek judicial relief—or does the

Due Process Clause (as petitioners contend) require

the agency to give sufficient advance notice to allow

the owner to get to court and obtain any judicial relief

to which he may be entitled?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment to the United States Con-

stitution provides in relevant part as follows:

‘“‘No person shall be. . . deprived of life, liberty,

or property, without due process of law... .”’

Section 6(f) of the Federal Trade Commission Act,

15 U.S.C. § 46(f), provides in relevant part that the

Federal Trade Commission shall have power

‘““(f) To make public from time to time such

portions of the information obtained by it here-

under, except trade secrets and names of cus-

tomers, as it shall deem expedient in the public

interest...”

STATEMENT OF THE CASE

In recent years hundreds of Federal agencies have

been making ever-increasing demands that private in-

dividuals and companies turn over to the agencies

enormous volumes of information of a kind tradition-

ally regarded as confidential. At the same time mem-

bers of Congress and their staffs, conscious of this

vast reservoir of information, have been making ever-

4

increasing demands upon such agencies for informa-

tion about private individuals and companies, to the

point where the volume of ‘“‘congressional demands

for access to confidential data”’ (according to the chief

of the agency involved in this case) has become a

major problem for the agencies involved.’ Petitioners

here are seeking to establish that any person—wheth-

er a private citizen or a private company—has an

affirmative right to be notified by such an agency in

advance of any proposed disclosure of his confidential

information so that he can obtain judicial review of

the propriety of the disclosure before it occurs. The

principle at issue, which derives directly from a hold-

ing of this Court in Eastland v. United States Service-

men’s Fund, 421 U.S. 491 (1975), affects not only

commercial interests of the kind involved in this case;

it affects the interests of a vast class of individuals

whose personal, political and associational activities

are documented in the confidential files of Federal

agencies, and it also has serious implications with

respect to governmental “secrets’’ which may be of

interest to Congress.

1. The Facts

In 1975 the Federal Trade Commission served upon

various companies involved in the uranium industry

a comprehensive investigative subpoena. In response

a number of companies, including these two petition-

ers (Exxon Corporation and Kerr-McGee Corpora-

?See Testimony of Michael Pertschuk, Chairman, Federal

Trade Commission, in Hearings on Oversight of Antitrust En-

forcement Before the Subcomm. on Antitrust and Monopoly of

the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. at 27

(1977).

+)

tion), turned over to the Commission a large volume

of detailed and competitively-sensitive information.

As accurately observed by the Court of Appeals be-

low, '

“It is undisputed that some of this material

involved trade secrets, particularly the data con-

cerning the production and projected yield of in-

dividual mines.”’ (App. at 6a).

Thereafter the Commission received from various

individual Congressmen a number of requests for in-

formation relating to the uranium industry; this re-

cord contains seven letters from seven different mem-

bers of Congress, each seeking one kind of uranium

information or another.* One of those seven requests

posed a threat to the confidentiality of the commercial

data which petitioners have considered particularly

sensitive, namely, “the production and projected yield

of individual mines.”’

That request consisted of a letter written on April

30, 1976, by the late Senator Philip Hart ‘on official

stationery of the Senate Judiciary Subcommittee on

Antitrust and Monpoly requesting the Commission to

make available all information it had concerning the

coal and uranium holdings of the oil companies”’ (App.

at 6a). In early May the undersigned counsel for

Exxon and Kerr-McGee were informed that Senator

Hart’s letter had been received by the Commission

but were simultaneously told that the Commission

* Four of the letters appear in the Joint Appendix below (J.A.

60, 61, 62, 93), and three additional letters appear as appendices

to the “Reply Brief of Appellant Exxon Corporation”’ (Append-

ices A, B and C) as filed in the court below.

6

had not yet decided whether to honor the request.

Accordingly, counsel took no action at that time.

May 10, 1976, however, at approximately 3

Pie anf afternoon, a member of the FTC staff

orally notified the undersigned counsel (a) that at 2

p.m. the following day (May 11, 1976) some uniden-

tified staff employees of Senator Hart’s subcommittee

were going to visit the FTC’s offices and (b) that the

Commission, in response to Senator Hart’s letter, had

decided that at that time the visitors would be given

access to all of the information which petitioners had

submitted under compulsory process to the FTC.

Petitioners were in fact concerned about the confi-

dentiality of a very limited amount of data. Specifi-

cally, petitioners understood the interest of Senator

Hart’s subcommittee in each oil company s total coal

and uranium reserves and had no objection to the

Commission’s disclosing such figures, but petitioners

could see nothing to indicate that Senator Hart's sub-

committee had any interest in competitively-sensitive

data relating to individual uranium mines. Since it

thus appeared to the petitioners that the FTC staff

was preparing, 23 hours later, to disclose to uniden-

tified staff personnel highly confidential information

which did not appear to be wanted by the subcom-

mittee itself, petitioners decided to seek judicial relief

in the 23 hours allowed to them by the Commission.

They barely succeeded. Within that 23-hour period

petitioners’ counsel consulted with their clients, pre-

pared complaints and motions for temporary injunc-

tive relief, assembled the affidavit support needed for

such motions, and filed the assembled papers in the

7

District Court for the District of Columbia.‘ Tempo-

rary injunctive orders were issued a few minutes be-

fore 2 p.m. on May 11, 1976.

After the initial rush to obtain temporary injunc-

tive relief it occurred to the petitioners that new

Congressional requests for their confidential data

might be forthcoming in the future and that, as mat-

ters then stood, there was nothing to prevent the FTC

from disclosing petitioners’ data without giving peti-

tioners any adequate opportunity to object or to seek

judicial relief. Indeed, the Commission had notified

petitioners that, if Congressional requests for the in-

formation were received by the FTC, the Commission

would give petitioners ‘‘as much advance notice [of

any proposed disclosure] as can reasonably be given”

in the circumstances, but the Commission had refused

(and still refuses to this day) to commit itself to give

sufficient advance notice to allow the owner of confi-

dential information to get to court and obtain what-

ever judicial relief might be appropriate in the circum-

stances.°

Accordingly, in their Amended Complaints peti-

tioners sought a judicial declaration to the effect that

a reasonable amount of pre-disclosure advance notice

(so as to afford each petitioner ‘a fair and reasonable

opportunity to protect its proprietary interests’’) is

*‘ The jurisdiction of the District Court was invoked pursuant

to 28 U.S.C. $§ 1331, 1337, 1361, 1651, 2201 and 2202 and 5

U.S.C. §§ 701-706.

* The Commission’s position was set forth in letters sent to

petitioners (and appended to their Amended Complaints). As

correctly noted in the opinion below, “{t]he FTC admits that it

fully intends to hold open the option of disclosing trade secrets

in the future without the safeguards sought by [petitioners]."’

App. 9a, n.10.

8

mandatory. When the FTC moved to dismiss this

“advance notice’ claim for failure to state a claim

upon which relief could be granted, Judge Pratt of the

District Court granted the motion, and a three-judge

panel of the Court of Appeals (per MacKinnon, Robb,

and Robinson, JJ.) affirmed.’

2. The Opinions Below

In the court below Judge MacKinnon wrote an

opinion for the three-judge panel which decided the

case. Thereafter, when petitioners suggested a re-

hearing en banc (which could be granted only if five

of the nine judges in regular active service voted in

favor thereof), two judges (Tamm and McGowan, JJ.)

recused themselves. Three others (those on the panel)

had already passed on the merits, leaving four judges

to consider the matter afresh. Those four split evenly

on the rehearing question, with two voting against

(Wright, C.J., and Leventhal, J.) and two voting for

rehearing en banc. Judge Bazelon voted to rehear the

case en banc in order to allow the court “‘to consider

the important questions this case raises under East-

land v. United States Servicemen's Fund, 421 U.S.

491 (1975)”, and Judge Wilkey wrote a three-page

“statement ... as to why he voted for rehearing en

banc’, expressing strong disagreement with the

panel’s opinion and stressing certain factors ‘“‘com-

* See, e.g., petitioner Exxon Corporation’s ‘‘Amended Com-

plaint for Injunctive and Declaratory Relief’, Count II.

‘ As previously noted (at p. 2, n. 1), petitioners unsuccessfully

sought stays pending appeal, but the denial of that relief has not

as yet resulted in disclosure of the confidential information. Pe-

titioners have been advised by the FTC staff that they have not

yet revealed the controversial data, but the threat of such dis-

closure obviously remains.

9

mending the case for certiorari review.”’ (App. 28a-

30a). The contrast between the opinions of Judges

MacKinnon and Wilkey not only frames the issue for

which certiorari review is now sought but also em-

phasizes its great importance in terms of constitu-

tional rights.

Looking first to the panel opinion, it laid down one

basic proposition as to which certiorari review is not

sought by these petitioners. In Part V of its opinion

(App. 18a-23a) the panel held, quite properly, that

with respect to informational requests from Capitol

Hill Section 6(f) of the Federal Trade Commission Act,

15 U.S.C. § 46(f)—which excludes “trade secrets”

from the information which the Commission may

properly ‘‘make public’’—imposes upon the FTC a sta-

tutory duty not to “disclose trade secrets except upon

legally authorized requests’’ from Congressional com-

mittees, as distinguished from requests from “‘indi-

vidual Congressmen” (App. 21a-22a). When the FTC

receives a request which purports to have been au-

thorized by a Congressional committee, the FTC has

a duty ‘“‘to verify” the ‘‘fact’’ of authorization “before

delivery”’ (id.); it must “take steps to ascertain the

validity”’ of the request (id. at 21a) by satisfying itself

that the request (whether in the form of a subpoena

or otherwise) has been ‘‘authorized’’ by a committee

or subcommittee of Congress (id. at 22a) and is not

simply a request by an individual Congressman (id. at

21a). Since neither the petitioners nor the FTC have

ever voiced any disagreement with this basic princi-

ple, the court below and the parties are agreed that

the owner of trade secret information in the hands of

the FTC has an affirmative statutory right to have

that information protected from disclosure pursuant

10

to a request which emanates from Capitol Hill but

which has not been properly “authorized” by a

congressional committee.’

Once the panel had confirmed the existence of such

substantive rights on the part of the owners of “trade

secret” information, petitioners would have expected

the panel to hold that, whenever the FTC receives an

informational request from Capitol Hill and plans to

honor it as being ‘‘legally authorized”’, it must notify

the owner of any affected confidential information of

the Commission’s intentions in order to allow him, if

appropriate, to obtain judicial review of the Commis-

sion’s determination that the request was “legally

authorized”’ (see App. 22a). In their briefs to the panel

the petitioners had urged vigorously that under this

Court’s decision in Eastland v. United States Service-

men’s Fund, 421 U.S. 491, 501 n.14 (1975), persons in

petitioners’ position have a clear right to judicial re-

- view of the propriety of such a Congressional request

for information in the hands of a third party and that

that right to judicial review can be exercised in fact

only if the affected party has advance notice of a

proposed disclosure.

Nevertheless, the panel, without ever referring to

the cited Eastland holding,’ flatly refused ‘‘to man-

date’’ that the owner of confidential information be

* In subsequent litigation the FTC has characterized the deci-

sion below as “based on the premise” that petitioners “have a

protectible proprietary interest’’ in the trade secrets they have

made available to the FTC. ‘Memorandum [of the FTC] in Sup-

port of Request for Reconsideration of October 18, 1978 Opin-

ion”, as filed in Wearly v. Federai Trade Commission (D. N.J.

Civ. Action No. 77-1860) at 16.

* As noted by Judge Wilkey, the panel's opinion referred to

other aspects of this Court’s Eastland decision but not to the

11

given any degree of advance notice of a proposed

disclosure so that he can in fact avail himself of his

right to judicial review (see App. 10a-15a).'° In the

words of Judge Wilkey,

‘strangely the court winds up holding that

the agency need not give the private party my

advance notice of a proposed disclosure—a hold-

ing which thus effectively precludes any judicial

review of the legal issue of whether disclosure is

proper. The panel thus recognizes the private par-

ties’ substantive and procedural rights, but si-

multaneously renders them totally unenforceable

and meaningless.’’ (App. 29a, emphasis added).

Certiorari review is sought for the above-cited hold-

ing, which appears in Part II of the decision below

(App. 10a-15a).

REASONS FOR GRANTING THE WRIT

The Challenged Holding Conflicts Not Only

With A Recent Decision Of This Court But Also

With Due Process, Logic, And Other Decisions

Of The Court Below

The controlling decision of this Court, Eastland v.

United States Servicemen’s Fund, 421 U.S. 491

holding relating to the present issue (App. 29a). Ironically, as

noted below, the portion of this Court’s Eastland opinion upon

which petitioners have relied affirmed a holding of the Court of

Appeals for the District of Columbia Circuit.

‘© Petitioners had sought a decl zatory judgment to the effect

that the FTC must provide either ten days’ advance warning or

at least sufficient advance notice to allow the affected party to

get to Gourt, but the panel explicitly ‘‘decline{d] to impose on the

Commission either an unqualified ten-day warning requirement

or the more flexible alternative of mandating simply ‘reasonable

prior notice.’ ’’ (App. at 13a, n.15.)

12

(1975), was rendered in a case which also came here

from the Court of Appeals for the District of Columbia

Circuit. In Eastland this same court of appeals held

that, where.a private organization has given confiden-

tial information to a third party (there a bank), and

where a Congressional demand for the information

has been made to that third party, the owner of the

information has an affirmative right to bring an ac-

tion in the Federal courts to test the propriety of the

Congressional demand. United States Servicemen’s

Fund v. Eastland, 159 U.S. App. D.C. 352, 359-360,

488 F.2d 1252, 1259-1260 (1973). Although this Court

subsequently disagreed with other rulings made by

the Court of Appeals in the same case, it explicitly

stated that the court below had ‘‘correctly held”’ that

the owner of the confidential information had a right

to judicial review of the Congressional request and

that ‘‘compliance by the third person’’ with the re-

quest should not be permitted to “frustrate any ju-

dicial inquiry.” 491 U.S. at 501, n.14.

Despite its own prior Eastland ruling and this

Court’s affirmance thereof, the panel below has now

held that ‘‘the third person”’ (here the FTC) is entitled

(to paraphrase this Court’s words) ‘‘to frustrate any

judicial inquiry”’ by revealing confidential informa-

tion in response to a Congressional demand without

giving the owner any opportunity for judicial review.

Petitioners respectfully submit that Part II of the

panel’s opinion (App. 10a-15a) unquestionably con-

flicts with the important principle confirmed by this

Court in Eastland."'

'' The point has been forcefully made by Judge Wilkey:

“While the panel’s decision discusses Eastland v. United

States Servicemen’s Fund, 421 U.S. 491 (1975), it nowhere

13

It also squarely conflicts with Due Process, logic,

and other decisions of the courts of appeals, including

those of the D.C. Circuit itself. Over the years this

Court has repeatedly emphasized the perfectly ob-

vious proposition that the Due Process right to a

judicial hearing includes the right to enough advance

notice to enable the affected party to get to court,

simply because the right to a hearing has no “reality

or worth” without such notice. Mullane v. Central

Hanover Trust Co., 339 U.S. 306, 314 (1950); see also

Boddie v. Connecticut, 401 U.S. 371, 378-379 (1971);

Fuentes v. Shevin, 407 U.S. 67, 80-82 (1972); Goss v.

Lopez, 419 U.S. 565, 579 (1975); Mathews v. Eldridge,

424 U.S. 319, 348 (1976). The panel opinion below

simply refused to recognize that petitioners’ ‘‘pro-

tectable proprietary interest in [their] confidential in-

formation’’'* was being stripped of its protection by

the panel’s decision to allow Federal agencies to dis-

pense with the advance notice so plainly required by

Due Process.

The ruling below is particularly ‘‘perplexing’’ (to

use Judge Wilkey’s adjective) in the light of the same

confronts the holding of Eastland that where a Congres-

sional subpoena has been issued for information relating to

a private party, but which is in the possession of another

entity, the affected private party has an affirmative right

to judicial review of the Congressional request before disclo-

sure is made. 421 U.S. at 496, n.9, and 501, n.14. Under the

panel’s strange rationale, while the right to judicial review

of the propriety of the Congressional action is recognized,

just as it was in Eastland, the panel destroys the right to

the judicial review it recognizes and which was granted in

Eastland by its illogical holding that the private party af-

fected has no right to notice which would enable him to seek

judicial review.’ (App. 29a-30a; emphasis in the original.)

'? The quoted phrase is that of the Federal Trade Commission.

See p.10, n. 8, supra.

14

court’s even more recent decision in Consumers Union

of the United States, Inc. v. Consumer Product Safety

Commission, ___. U.S. App. D.C. ; F.2d

____ (D.C. Cir. No. 75-2059, Dec. 22, 1978). There the

court emphasized, with voluminous citations, the fact

that Government agencies accumulate all kinds of

confidential information about “‘little people’ (includ-

ing information about marital status, legitimacy of

children, identities of fathers, alcoholic consumption,

family fights, etc.) and that “it would be folly to en-

trust’”’ the decision whether or not to disclose such

private information under the Freedom of Informa-

tion Act “to unreviewable bureaucratic discretion”

(Slip Op. at 9-10 and n.27). Although the opinion

(which was written by a member of the panel in this

case) does not explicitly mention procedural Due Proc-

ess, that was clearly the source of the principle in-

voked:

‘Surely these individuals should not be with-

out recourse to judicial review of _—- action

so deeply affecting their privacy.’’ (Jd.)'*

Similarly, in a case which is pending before this

Court on other issues, Chrysler Corp. v. Schlesinger,

565 F.2d 1172 (3d Cir. 1977), cert. granted sub nom.

Chrysler Corp. v. Brown, 435 U.S. 914 (1978), the

Court of Appeals for the Third Circuit held that as a

matter of Due Process a private party whose confi-

'S As to Congressional requests for such private information,

this Court held a century ago that under the Constitution Con-

gress does not possess ‘‘the general power of making inquiry into

the private affairs of the citizen.’’ Kilbourn v. Thompson, 103

U.S. 168, 190 (1880), cited with approval in McGrain v. Daugh-

erty, 273 U.S. 135, 173 (1927), and Eastland, supra, 421 US. at

504, n.15.

15

dential information is sought from a Federal agency

under the Freedom of Information Act must have

some opportunity for judicial review before disclo-

sure. As the court there observed, ‘‘Judicial review of

agency action must be available at a meaningful time

. .. [D]isclosure would render moot any judicial review

... 565 F.2d at 1193."

Finally, this last quite obvious point—that an op-

portunity for judicial review must be provided before

actual disclosure—has been explicitly recognized by

the D.C. Circuit itself; indeed, in one prior case the

court en banc ordered the Federal Trade Commission

to give the owner of confidential information ‘‘ten

days’ advance notice of its intention’’ to disclose the

information to Congress and explicitly recognized

that such notice was needed in order to “provide an

opportunity for judicial review at some later date if

[the owner believes] that a particular proposed disclo-

sure is improper.’ Federal Trade Commission v. Tex-

aco, Inc., 180 U.S. App. D.C. 390, 412-13, 555 F.2d

862, 884-885 (D.C. Cir. en banc), cert. denied, 431 U.S.

974 (1977)."°

Petitioners respectfully submit that the point is so

obvious, and the error in the panel’s ruling so plain,

that summary reversal now would be entirely justi-

fied.

‘The quoted language was directly addressed to the issue of

finality of agency action but is equally applicable here.

‘8 In entering the above-described order the court stated that

it was “‘not herein adopting a rule of general applicability for a

ten-day notice provision’’, 555 F.2d at 884, n.64, but the signif-

icant point is that in entering the order in Texaco the court

recognized (as the panel failed to do in this case) that without

advance notice there can be no “‘opportunity for judicial review.”’

16

As Recognized By The Court Below, The Issue

For Which Certiorari Review Is Now Sought In-

volves Important Constitutional Questions Af-

fecting Legislative Powers And Private Rights,

And The Issue Should Be Resolved By This

Court

The basic rationale employed by the panel in refus-

ing to require the FTC to afford an opportunity for

judicial review of Congressional information requests

was that, although it would be a “‘rarity’’ for Congress

to issue a ‘‘forthwith subpoena’”’ calling for “‘immedi-

ate disclosure” of confidential information, neverthe-

less Congress has constitutional authority to issue

such subpoenas and that for the court ‘‘to mandate

any enforced delay’’ in complying with such a sub-

poena “would be of highly questionable constitution-

ality.” (App. lla and n.12). Petitioners respectfully

disagree.'* For present purposes, however, the impor-

'® We disagree for several reasons:

(1) As the panel itself recognized, a ‘‘forthwith subpoena” is just

as capable of being invalid as any other subpoena. The panel has

held in effect that an agency served with a forthwith subpoena

is entitled to immunize it from judicial review (by failing to give

any notice to the affected private party), even if the subpoena is

invalid, but that cannot be the law.

(2) Even the panel recognizes that, where an agency has received

a Congressional request (either in the form of a forthwith sub-

poena or otherwise), there must be some delay in compliance

because (in the panel’s words) the agency must take the time

needed ‘‘to ascertain the validity’’ of the request and ‘‘verify”’

the underlying authorization ‘‘before delivery” of the requested

information (App. 21a-22a).

(3) None of the requests reflected in the present record were

embodied in subpoenas, forthwith or otherwise. Even if the panel

17

tant point is that the panel views the issue as one

directly involving the constitutional power of Con-

gress to investigate. See App. lla.

At the same time, the issue directly involves the

protection of private constitutional rights. As empha-

sized by Judge Wilkey, the panel’s ruling is not con-

fined to the trade secrets of oil companies; on the

contrary,

“The rule laid down by the panel is a general

rule on the authority of Congressional commit-

tees to request and obtain from any federal agen-

cy confidential information furnished to it by a

private party. This rule permitting disclosure

without any notice whatsoever is equally appli-

cable to all kinds of information protected can

disclosure by any one of numerous constitutional

and statutory provisions. Congress’ and the

courts’ oft 5, naps concern for privacy, for ex-

ample, would be completely vitiated by this gen-

eral rule.” (App. 29a).

The “privacy” implications of the ruling below can

be illustrated by reference, again, to the opinion of

the court below in Consumers Union of the United

States, supra. As noted above (at p. 14), that opinion

detailed the great variety of intensely personal infor-

mation which private individuals are routinely re-

quired to turn over to Federal agencies, and yet the

panel in this case has held that any such agency can

make such information available to Congressional per-

sonnel without giving the affected private party any

were correct in holding that it would be unconstitutional for a

court to require a Federal agency to delay compliance with a

forthwith subpoena, that rationale can hardly justify the panel’s

refusal to require advance notice before compliance with other

types of Congressional requests.

18

opportunity for impartial review of the propriety of

the disclosure. From the perspective of private indi-

viduals, we submit, the constitutional importance of

the issue is plain.

Moreover, the ruling below—allowing a party with

a substantive right to be stripped of the remedy that

would make the right meaningful—poses a threat to

the interests of the Federal Government itself. For

example, in other litigation in the court below the

Department of Justice has been maintaining that,

where a private company possesses national security

information and receives a Congressional demand for

disclosure, the Executive Branch of the Federal Gov-

ernment has a substantive constitutional right to

have the private company withhold the information

from Congress,’ and the court has confirmed the an-

cillary equitable right of the Federal Government to

a judicial hearing, to injunctive relief'*—and, as an

unstated but necessarily-implied corollary, to advance

notice of a threatened disclosure so that the substan-

tive public right can be protected.'® The notion ad-

vanced below that the possessor of confidential infor-

mation has no advance-notice obligation to the ‘“‘own-

'’ United States v. American Tel. & Tel. Co., 179 U.S. App.

D.C. 198, 203, 551 F.2d 384, 389 (D.C. Cir. 1976).

'® United States v. American Tel. & Tel. Co., 185 U.S. App.

D.C. 254, 262, 567 F.2d 121, 129(D.C. Cir. 1977).

'® As noted in the text, in such a situation the right to advance

notice arises, not from the Due Process Clause (which presum-

ably does not protect the interests of the public as against private

action), but rather as a necessary corollary to the substantive

public right and the right to a remedy to protect it. Similarly, in

the instant case the petitioners’ ‘‘protectable’’ substantive

rights (see p. 10, n. 8 and p. 13, supra) give them a right to

advance notice, quite apart from the Due Process Clause, al-

though in this context the clause reinforces that right.

19

er’ poses a substantial threat to the interests of all

such owners, private and public alike. For this addi-

tional reason, we submit, certiorari should be granted.

Finally, certiorari review would be appropriate even

if nothing more than purely commercial interests were

at stake. In Chrysler Corp. v. Brown, supra, this Court

has granted certiorari in order (in part) to determine

the proper scope of the judicial review that will be

available to a private company which is seeking to

protect its trade secrets from disclosure by a Federal

agency under the Freedom of Information Act. There

it has been an accepted premise that some degree of

pre-disclosure judicial review must be made available;

the only issue is whether the review will be de novo.

In this case, however, the issue is whether there must

be judicial review at all. In short, the issue here is

even more fundamental than the related issue to be

reviewed in Chrysler, and the reasons for granting

certiorari are even more compelling.

We respectfully submit that Judge Wilkey was

plainly correct in his observation that the rule adopt-

ed below “strikes down the protection of judicial re-

view where constitutional rights are affected’’ and

that the case involves a fundamentally important is-

sue calling ‘‘for certiorari review’ (App. 28a, 30a).

The Case Presents An Important Issue Which Is

Bound To Recur In A Variety Of Contexts And

Which Thus Calls For Immediate Resolution By

This Court

The respondent’s principal spokesman, Chairman

Pertschuck of the FTC, has testified to the recurring

20

nature of ‘“‘congressional demands for access to con-

fidential data’ in the hands of the FTC (see p. 4,

supra), and there is no reason to believe that other

Federal agencies have had any different experience.

Moreover, the AT&T litigation in the court below (see

page 18, supra) confirms that Congress also makes

demands for governmental information in the posses-

sion of private parties. Some of these demands, of

course, are made by Congressional committees, but

some, as recognized by the panel below, consist of

“casual requests of individual Congressmen” (App. at

21a).

The risk of subsequent disclosure by Congressmen

has long been recognized. In this very case the court

below has held that the ‘‘divulgement’’ of trade se-

crets to individual Congressmen is forbidden by stat-

ute, obviously because of the risk that such Congress-

men will make further disclosures (App. at 21a-22a),”°

and, as noted in the same AT&T litigation, the Pres-

ident of the United States regards the submission of

national security information to a Congressional com-

mittee as creating ‘“‘unacceptable risks of disclosure”’

by the committee itself.’ In view of the possibility of

‘leaks’, either by individual Congressmen” or by

*° See, ¢.g., the following statement in the panel’s opinion (at

App. 20a+2 1a):

“Election [of an individual] to the Congress does not give

an individual subpoena power over whatever information he

may happen to be interested in, and particularly not over

trade secrets, whose oftentimes enormous value may be for-

feited by disclosure to the public.”’ (Emphasis added).

*! United States v. American Tel. & Tel. Co., 179 U.S. App D.C.

198, 202, 551 F.2d 384, 388 (D.C. Cir. 1976).

#2 As recently noted by the District Court below (per Gesell, J.)

in FTC v. Qwens-Corning Fiberglas Corporation (D.D.C. No. 78-

0313), when confidential information is delivered to a Congress-

21

Congressional committees,” every transfer of confi-

dential information, whether public or private, to Con-

gress raises a clear potential danger to the public or

private interest involved.

The panel’s ruling below leaves every entity which

possesses such information free to “‘moot’’ the ques-

tion of the propriety of a disclosure in every case if it

wants to do so (simply by making the disclosure with-

out advance notice}. and it is therefore important that

this Court come to grips with this recurring and trou-

blesome issue now.” Since the issue directly affects

the rights of every ‘‘owner” of confidential informa-

tion—whether a private citizen, a private company or

a public body—and since the issue is well ‘‘beyond the

man, it frequently happens that the information is ‘‘in the news-

papers by the afternoon” (Transcript of Proceedings, Dec. 15,

1978, at 93-94).

23 See United States v. American Tel. & Tel. Co. 179 U.S. App.

D.C. 198, 208, 551 F.2d 384, 394 (D.C. Cir. 1976).

** The panel characterized the issue as ‘‘only an incipient con-

troversy’’ (App. 10a), apparently on the theory that disclosure of

petitioners’ trade secrets to Senator Hart’s Subcommittee on

Antitrust and Monopoly would not necessarily cause harm (id.

at 12a-13a). But the panel’s newly-adopted principle (leaving

every agency free to omit advance notice of disclosure) applies

not simply to the specific request made by that subcommittee

but to all future Congressional requests, without regard to their

propriety. The only way that the present controversy could be

more concrete would be if the FTC had already disclosed peti-

tioners’ trade secrets to someone on Capital Hill (as it has not

yet done, see p. 8, n. 7, supra), and in such circumstances the

FTC would doubtless be arguing now that the case was moot

and non-justiciable (see p. 15, supra). The controversy is no more

“incipient’”’ than a proposed merger of the kind so frequently

challenged in litigation by the FTC.

22

academic or the episodic’’,”* it should be resolved by

this Court in this case.”

CONCLUSION

The instant petition, which presents a single con-

stitutional issue which is both remarkably simple and

remarkably important, should be granted.

Respectfully submitted,

ROBERTS B. OWEN

888 16th St., N.W.

Washington, D.C. 20006

Of Counsel:

Steven S. Rosenthal

Patrick M. Norton

Covington & Burling

888 16th St., N.W.

Washington, D.C. 20006

*® See Rice v. Sioux City Cemetery, 349 U.S. 70, 74 (1955).

*® The opinion below is plainly incorrect in suggesting that the

relief requested—a simple ruling as to the requirement of advance

notice—would constitute an impermissible judicial interference

with administrative discretion (see App. lla, 14a-15a). That is

akin to saying that, where the law requires an administrative

agency to afford a hearing and an agency is threatening to pro-

ceed without one, the Federal courts should not inject themselves

into the controversy because a declaratory judgment requiring

a hearing would interfere with the agency’s broad discretion as

to how hearings should be conducted.

APPENDIX

la

United States District Court

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 76-0812

EXXON CORPORATION,

Plaintiff,

Vv.

FEDERAL TRADE COMMISSION, et al.,

Defendants.

Order

Upon consideration of the complaint; the Motions of

Plaintiff for a Preliminary Injunction and for Partial Sum-

mary Judment; the Motion of Defendants to Dismiss the

Action; the Statements of Points and Authorities and ar-

gument of counsel in support thereof and in opposition

thereto; it appearing to the Court that the Federal Trade

Commission has authority, in response to an official re-

quest or subpoena of Congress, to transmit confidential

commercial information and trade secrets to Congress

without affording ten days prior notice to the party which

supplied such confidential information and trade secrets

to the Commission;' that such transmission does not con-

' We are not unmindfu! of footnote 63 of the Court of Appeals

opinion in F.T.C. v. Texaco, No. 74-1547, decided en banc, Feb-

ruary 23, 1977 (slip opinion p. 43). However, we believe that

action to be legally and factually distinguishable from the case

at bar.

2a

stitute public disclosure within the meaning of section 6(f)

of the Federal Trade Commission Act, 15 U.S.C. (Supp. V)

§ 46(f); and that such transmission in this case would not

cause irreparable harm to plaintiff. Ashland Oil Company

v. F.T.C, U.S. App. D.C. , No. 76-1174 decided

September 20, 1976, petition for rehearing denied, March

2, 1977.

ORDERED that Plaintiff’s Motion for Partial Summary

Judgment is, denied; and it is

FURTHER ORDERED that Defendants’ Motion to Dis-

miss the Action is granted and this action be, and the

same is hereby, dismissed with prejudice, and it is

FURTHER ORDERED that Plaintiff’s Motion for a Prelim-

inary Injunction is denied as moot, and it is

FURTHER ORDERED that plaintiff’s request for a stay

of this Order pending the filing of an appeal is denied.

/s/ JOHN H. PRATT

John H. Pratt

United States District

Judge

29 March 77

3a

Notice: This opinion is subject to formal revision before

publication in the Federal Reporter or U.S. App. D.C. Re-

ports. Users are requested to notify the Clerk of any formal

errors in order that corrections may be made before the

bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1302

EXXON CORPORATION, APPELLANT

Vv.

FEDERAL TRADE COMMISSION, et al.

(Civil 76-0812)

No. 77-1303

KERR-MCGEE CORPORATION, APPELLANT

Vv.

FEDERAL TRADE COMMISSION, et al.

(Civil 76-0814)

Bills of costs must be filed within 14 days after entry of

judgment. The court looks with disfavor upon motions to

file bills of costs out of time.

.

4a

No. 77-1304

UNION CARBIDE CORPORATION, APPELLANT

Vv.

FEDERAL TRAPPE COMMISSION, et al.

(Civil 76-0793)

Appeals from the United States District Court

for the District of Columbia

Argued February 13, 1978

Decided October 19, 1978

Roberts B. Owen, for appellant in No. 77-1302. Argued

on behalf of all appellants.

J. Randolph Wilson and Steven S. Rosenthal were on the

brief, for appellant in No. 77-1303.

James H. Wallace, Jr. and Thomas C. Arthur were on

the brief, for appellant in No. 77-1304.

Gerard P. Norton, Acting General Counsel, Federal

Trade Commission, with whom Earl J. Silbert, United

States Attorney, John A. Terry, and Joel S. Perwin, As-

sistant United States Attorneys, Jerald D. Cummins, Act-

ing Assistant General Counsel, and Arthur W. Adeloug,

Attorney, Federal Trade Commission, were on the brief,

for appellees.

Michael Lemov was on the brief, for Amicus Curiae,

Congressman John E. Moss, urging affirmance.

5a

Before ROBINSON, MACKINNON and RoBB, Circuit

Judges.

Opinion for the court filed by Circuit Judge MACKIN-

NON.

MACKINNON, Circuit Judge: Exxon appeals from the

district court’s refusal to grant injunctive or declaratory

relief and from its subsequent denial of a stay pending

appeal. At issue is whether any protective measures should

be imposed on the Federal Trade Commission (hereafter

the ‘“‘Commission”’ or the ‘‘FTC’’) with respect to the di-

vulgence to Congress of ‘‘trade secrets’ obtained by it

under the compulsion of a subpoena.' The controlling stat-

ute provides:

The [Federal Trade] Commission shall also have power—

* * * *

(f) To make public from time to time such portions of

the information obtained by it hereunder, except trade

secrets and names of customers, as it shall deem ex-

pedient in the public interest .. .

15 U.S.C. § 46(f) (emphasis added). The parties do not dis-

pute, nor could they after our decision in Ashland Oil, Inc.

v. FTC, 548 F.2d 977 (D.C. Cir. 1976), that Congress has

a right of access to such information, including trade se-

crets. The issue before us concerns solely the question of

notice to parties prior to disclosure of their confidential

information and of safeguards to ensure the continued

confidentiality of such information once disclosed to the

Congress. :

'There is no question that the information in question here

qualifies under this court’s definition of ‘‘confidential’’ informa-

tion for purposes of the Freedom of Information Act, 5 U.S.C.

§ 552 (1970). In National Parks and Conservation Assoc. v. Mor-

ton, 498 F.2d 765, 770 (D.C. Cir. 1974), rev’g 351 F. Supp. 404

6a

In 1975, pursuant to a subpoena, Exxon, Kerr-McGee,

and Union Carbide made available to the Commission in-

formation relating to their ownership, operation of, and

future expectations for their uranium holdings.’ It is un-

disputed that some of this material involved trade secrets,

particularly the data concerning the production and pro-

jected yield of individual mines. In April of 1976, in the

course of considering S. 489, 94th Cong., 1st Sess., which

proposed prohibiting oil companies from owning interests

in fuel reserves other than oil and gas, Senator Hart wrote

to the Commission on official stationery of the Senate

Judiciary Subcommittee on Antitrust and Monopoly re-

questing the Commission to make available all information

it had concerning the coal and uranium holdings of the oil

companies.* The F.T.C., because of the relationship of its

(D.D.C. 1972) we stated that information will be considered con-

fidential if its disclosure is likely to ‘“‘cause substantial harm to

the competitive position of the person from whom the informa-

tion was obtained.’’ Production forecasts such as are at question

in this case would clearly cause such competitive harm were they

disclosed to competitors. See JA 64 (Dickeman Affidavit for

Exxon Co.); JA 73 (Zitting Affidavit for Kerr-McGee Co.); JA 78

(Thurber Affidavit for Union Carbide Co.). Trade Secrets and

other confidential data are not immune to FTC investigation,

Covey Oil Co. v. Continental Oil Co., 340 F.2d 973 (10th Cir.),

cert. denied, 354 U.S. 925 (1965). For the broad range of the

Commission’s subpoena power in general, see, e.g., Menzies v.

FTC, 242 F.2d 81 (4th Cir.), cert. denied, 353 U.S. 957 (1957); 12

Von Kalinowski, Trade Regulation § 86.06 (1977).

* Appellant Union Carbide also submitted, and sought to pro-

tect, data relating to its coal holdings. Government Brief at 2-3.

* Senator Hart at the time was Chairman of the Senate Sub-

committee on Antitrust and Monopoly. He wrote to the FTC

following receipt of a letter from Senator Abourezk, also a mem-

ber of the Subcommittee on Antitrust and Monopoly. In his

letter Senator Abourezk suggested that the information in the

FTC’s possession was ‘“‘crucial’’ to the consideration of S. 489.

JA61.

7a

functions to those of Congress, treats such congressional

requests as compulsive, even though they lack the formal

status of congressional subpoenas. However, the Commis-

sion had previously assured the companies in writing that

in the event of any congressional request for confidential

information (trade secrets), it would both advise the Mem-

bers of Congress who submitted the request that the in-

formation should be considered confidential when received,

and give the companies themselves ten days prior notice

of disclosure, whenever such notice was “reasonably pos-

sible’ (Government’s Brief at 2-3).

In early May, the Commission notified appellants of the

subcommittee’s requests, and appellant Union Carbide

quickly obtained a court order restraining the disclosure

of the requested information until ten days after the de-

cision in the then pending Ashland Oil, Inc. v. F.T.C. case.

Shortly after the Union Carbide order was issued, the sub-

committee forwarded a formal request for immediate ac-

cess to the information, and the Commission informed the

parties that it would disclose the data requested the fol-

lowing day, except insofar as protected by the court order

obtained by Union Carbide. At this point, Kerr-McGee and

Exxon also succeeded, despite only 23 hours advance no-

tice, in obtaining a preliminary injunction barring disclo-

sure until the decision in Ashland Oil.

Some months later, in September, 1976. in Ashland Oil,

Inc. v. F.T.C., 548 F.2d 977 (D.C. Cir. 1976) this court

decided that it was permissible for the Commission to

disclose confidential information to Congress.‘ The district

‘Ashland Oil did not consider or determine the amount of

notice the Commission might be required to give corporations

whose trade secrets were to be divulged to Congress, or what

steps the Commission should or could take to safeguard the

confidentiality of these secrets once revealed to Congress. The

question in Ashland Oil simply was whether or not the F.T.C.

was authorized to divulge trade secrets at all, in light of 15

8a

court thereupon dissolved the preliminary injunction

granted to appellants, on the grounds that they were un-

likely to succeed on the merits, as Ashland Oil had deter-

mined that disclosure to Congress did not constitute ‘‘pub-

lic disclosure,’’ and also that the companies were not

threatened with irreparable injury.® The district court also

denied appellants’ request that the Commission be re-

quired to give ten days advance notice before revealing

trade secrets to Congress. From this decision the appel-

lants briefly obtained a stay pending appeal or until ‘‘fur-

ther order of this Court,’ but this stay too was later

vacated in light of Ashland Oil.’

Some of the information that the appellants sought to

protect has already been disclosed, and this appeal is moot

as to this material.* Other information, although vulnera-

ble to disclosure whenever Congress may request it, re-

mains undivulged.’ As regards this information, and ap-

pellants’ general request that the Commission be required

to give ten days notice prior to disclosure, and that rea-

U.S.C. § 46(f)’s prohibition against ‘‘making public’’ su ;

Likewise Ashland Oil did not consider es Gas of Mablliey foc

| resulting from the disclosure of trade secrets in viola-

tion of 15 U.S.C. § 46(f).

‘JA 90.

* JA 92, Order of March 30, 1977.

* JA 96, Order of May 6, 1977.

* The information disclosed consisted of the data concerning

Union Carbide’s coal holdings.

. Senator Kennedy, the new Chairman of the Subcommittee on

Antitrust and Monopoly expressed the continued interest of the

Subcommittee in the information originally requested by the late

Senator Hart by a letter of Judge Leventhal of this Circuit Court,

dated April 13, 1977. Senator Moss, Chairman of the Senate

Committee on Oversight and Investigation, by letter of April 19,

1977 to the Clerk of the United States Court of Appeals ex-

pressed a similar interest. The status of these letters in this

proceeding is unclear since the record does not indicate the au-

thority for their issuance.

9a

sonable steps be required to ensure that Congress will keep

such trade secrets confidential, the issues before us are not

moot, and we resolve them here.'°

It should be noted, however, that a large part of the

questions raised by appellant while not moot, represent an

attempt to have this court virtually engage in rulemaking

for the FTC." Our situation is somewhat analagous to

those in which expansive conceptions of standing and ripe-

ness have occasioned adjudications in which the courts

have been cast in the inappropriate, and possibly ultra

vires, role of attempting to resolve essentially abstract

‘© If the FTC during the course of this appeal discloses the as

yet undivulged information, this appeal will become moot as

regards such information. However, appellant's request that the

court issue a protective order requiring certain procedures to

protect confidential data in the hands of the FTC when such data

is requested by Congress will not itself be mooted by the disclo-

sure of the information involved in this particular case. A suit

for an injunction is not moot where the action which plaintiff

seeks to enjoin may recur in the future. United States v. Concen-

trated Phosphate Export Ass'n, 393 U.S. 199 (1968); see also,

United States v. W. T. Grant Co., 345 U.S. 629 (1953). The FTC

admits that it fully intends to hold open the option of disclosing

trade secrets in the future without the safeguards sought by

appellants. The fact that some issues in a case have become moot

does not prevent a court from reviewing nonmooted issues where

these are sufficiently significant that the cause of action remains

justiciable, e.g., Super Tire Engineering Co. v. McCorkle, 416

U.S. 115 (1974); United Public Workers v. Mitchell, 330 U.S. 75

(1946); 6A J. Moore, Federal Practice § 57.13 at 57-121-125.

'! Appellants assert (see Reply Brief for Appellant Exxon at

31-35) that the purpose of obtaining notice prior to disclosure is

to have sufficient time to seek judicial review of the proposed

divulgement. In this case, however, all appellants were able on

very short notice to secure prior judicial review. Thus the fact

pattern before this court is a particularly inappropriate one in

which to evaluate the damage that might result if a company

were unable to obtain judicial review before disclosure as the

court does not have before it any evidence of the effect of such

denial.

10a

questions in reviewing agency regulations, see e.g., ASAR-

CO, Inc. v. EPA, 578 F.2d 319 (D.C. Cir. 1978) (Mac-

Kinnon, J., concurring in part and dissenting in part). In

this case, appellants request this court to assume the in-

appropriate and potentially overreaching role of promul-

gating confidentiality guidelines for the Commission. We

hav e, however, explicitly restricted our judgment in a pre-

vious case dealing with similar issues to the facts of that

case, eschewing establishing any broad principle limiting

the Commission’s actions, see FTC v. Texaco, Inc., 555

F.2d 862 (D.C. Cir.) (en banc), cert. denied, 431 U.S. 974

(1977) and we see no reason, nor any justification for doing

otherwise in deciding this appeal.

: Concerning appellants’ prayer for a permanent injunc-

tion requiring ten days warning to affected parties before

the FTC can disclose confidential data pursuant to

congressional request, although we are very sympathetic

to the need to protect the owners of valuable trade secrets,

e.g., Underwater Storage, Inc., v. United States Rubber

Co., 371 F.2d 950, 954 (D.C. Cir. 1966), cert. denied, 382

U.S. 911 (1967),—and would allow them to be disclosed

only upon valid formal requests of Congress or its com-

mittees, see part V, infra—we consider, given no more

basis for such an injunction than what is presented here,

that no basis exists for us to inject the courts into what is

only an incipient controversy.

The authority of the subcommittee to make a proper

request for information of the nature that appellants seek

to protect is not questioned. The disclosure was not to be

used as “exposure for exposure’s sake,” see Watkins v.

United States, 354 U.S. 178 (1957), and the subject of the

subcommittee’s inquiry was one “on which legislation

could be had” and thus was a proper topic of Congressional

lla

inquiry, McGrain v. Daugherty, 273 U.S. 135, 177 (1927);

Braden v. United States, 272 F.2d 653 (5th Cir. 1959);

Sacher v. United States, 252 F.2d 828 (D.C. Cir.), rev'd on

other grounds, 356 U.S. 576 (1958). The material that the

FTC proposed to divulge, then, was fully within the scope

of the legislature’s legitimate investigatory powers.

For this court on a continuing basis to mandate an en-

forced delay on the legitimate investigations of Congress

whenever these inquiries touched on trade secrets could

seriously impede the vital investigatory powers of Con-

gress and would be of highly questionable constitutional-

ity. While normally reasonable advance notice can be re-

quired, in exigent circumstances Congress has full author-

ity to issue forthwith subpoenas and formally request

immediate disclosure. To impose a mandatory notice pe-

riod would skirt dangerously close to being at least the

temporary ‘equivalent to an order quashing [the official

request or subpoena] which is generally an impermissible

frustration of the congressional power to investigate ...

and hence [would raise] serious constitutional issues,”

United States v. American Tel. & Tel. Co., 551 F.2d 384,

388 (D.C. Cir. 1976), citing, Eastland v. United States Serv-

icemen’s Funds, 421 U.S. 491, 506 (1975). It would also

abrogate the broad discretion of the Commission, e.g., FTC

v. Lonning, 539 F.2d 202, 211 (D.C. Cir. 1976),—through

which the FTC can make use of its considerable expertise

to balance the private and public interests involved—to

formulate its own reasonable confidentiality protections,

see FTC v. Anderson, 442 F.Supp. 1118 (D.D.C. 1977)."’

'? The FTC argues that it would be without authority to resist

forthwith subpoenas or formal requests for an immediate re-

sponse, Brief for FTC at 20. Forthright subpoenas in the areas

involved in these cases are certainly a rarity because of the time

necessary to gather the information and the speed with which

congressional committees function.

12a

To impose any mandatory advance notice would run

directly counter to the spirit expressed in Eastland v.

United Servicemen's Fund, supra:

This case illustrates vividly the harm that judicial

interference may cause. A legislative inquiry has been

frustrated for nearly five years, during which the

Members and their aide [sic] have been obliged to

devote time to consultation with their counsel con-

cerning the litigation, and have been distracted from

the purpose of their inquiry. The Clause [the Speech

or Debate Clause] was written to prevent the need to

be confronted by such “‘questioning’”’ and to forbid

invocation of judicial power to challenge the wisdom

of Congress’ use of its investigative authority.

421 U.S. at 511.

The inquiry in Eastland differed from that in the present

appeal,'* but the decision’s emphasis on the necessity for

courts to refrain from interfering with or delaying the in-

vestigatory functions of Congress has an obvious rele-

vance to appellants’ demand that we impose a ten day

delay on the FTC’s compliance with any Congressional

request for certain information.

Furthermore there is no indication that disclosure to the

Subcommittee on Antitrust and Monopoly will in any way

harm the appellants. We have heretofore held that release

of information to the Congress does not constitute “public

disclosure,”’ Ashland Oil, supra, 548 F.2d at 979; Exxon v.

F.T.C., No: 76-0812 (D.D.C. March 29, 1977) at 1. Because

such divulgement is not ‘‘public,’’ it does not in itself

impair the value of the trade secrets involved, and thus

'* Eastland held that the subpoena of certain bank records from

organizations being investigated as potentially harmful to the

morale of the armed services was within the “leigitimate legis-

lative sphere’ and that the Speech or Debate Clause precluded

judicial interference with congressional investigations within

this sphere.

13a

does not involve a deprivation prior to which a hearing is

required. Thus, the protection of a judicial order, which

mandating advance notice would require, is not necessary

before such disclosure in order to accord with principles of

due process, see Roth v. Bd. of Regents, 408 U.S. 564

(1972); Perry v. Sinderman, 408 U.S. 593 (1972). The courts

must presume that the committees of Congress will exer-

cise their powers responsibly and with due regard for the

rights of affected parties, Ashland Oil v. FTC, supra, 548

F.2d at 979, quoting Ashland Oil v. FTC, 409 F. Supp.

297, 308 (D.D.C. 1976); see also, Safeway Stores, Inc. v.

FTC, 428 F. Supp. 346, 347 (D.D.C. 1977). In sum, we

reaffirm our rationale in Ashland Oil that absent a showing

that it is ‘‘evident’’ that Congress intends to make trade

secrets divulged to it by the FTC publicly available, the

Commission may, upon proper demand, release such se-

crets to the Congress without the necessity of prior notice

to the parties involved, unless of course the Commission

obtained such information upon an agreement to give prior

notice to the party.'*

'‘We thus decline to impose on the Commission either an

unqualified ten day warning requirement or the more flexible

alternative of mandating simply ‘‘reasonable prior notice.’’ We

have recently held in the specific context of congressional re-

quests for confidential data from the F.T.C. that release to the

Congressional Committee is not ‘‘public disclosure,’’ Ashland Oil

v. F.T.C., supra. Thus, such disclosure does not in itself injure

appellants. Furthermore, as a general principle, judicial interven-

tion to prevent potential injury from prospective government

misconduct is only justified when such misconduct is imminent,

not merely hypothetical, Reporters’ Committee for Freedom of

the Press v. A.T.&.T., No. 76-2057 (D.C. Cir. August 11, 1978) at

66, 76-77, citing Rizzo v. Goode, 423 U.S. 362 (1976); Allee v.

Medrano, 416 U.S. 802 (1974); and Laird v. Tatum, 408 U.S. 1

(1972). To authorize such supervision as the appellants request

would not only do violence to the presumption that congressional

bodies will act responsibly, Ashland Oil v. F.T.C., supra, but also

would place a significant impediment in the path of government

investigations of important aspects of our economy.

l4a

Our decision in FTC v. Texaco, Inc., supra, 555 F.2d at

884 in which ten days notice was required by the court

with respect to a specific request does not in any way

conflict with our refusal here to order a similar general

warning period. We do not interpret Texaco as authority

for establishing such a period as a general requirement for

FTC disclosure of trade secrets to Congress. In that case

we explicitly stated:

The Court is not herein adopting a rule of general

applicability for a 10-day notice provision. It is rather

adoptin raph nes ts § of this case a proposal for con-

fidentiality advanced by FTC....

555 F.2d at 884 n.64 (emphasis added). Clearly this court’s

decision to accept the F.T.C.’s own proposed settlement in

a case which—as the district court noted'*—was distin-

guishable on its facts from the present one, is not prece-

dent for imposing a ten day rule in the situation before us

now. Moreover, we also noted in Texaco that F.C.C. v.

Schreiber, 381 U.S. 279, 295-296 (1965) made clear that ‘“‘it

is the agencies, not the courts, which should, in the first

instance, establish the procedures for safeguarding confi-

dentiality,’’ 555 F.2d at 884 n.62. The Commission has

recently issued a notice of proposed rulemaking involving

its protection of confidential information, 43 Fed. Reg.

3571 (January 26, 1978).'* It would be completely inappro-

priate in light of our interpretation of the Schreiber case,

and the view we take of our judicial authority, to interfere

at this point and impose what in effect would be a general

protective order upon the F.T.C., see also, F.T.C. v. United

'® JA 84.

'® The proposed rules provide that, in response to congressional

requests for confidential data, ‘‘ten days notice shall be given

where possible” (emphasis added), 43 Fed. Reg. 3574 (January

26, 1978). It would seem that the rule should provide that in all

instances the party will be notified immediately whenever Con-

gress makes a proper request for trade secrets.

15a

States Pipe and Foundry Co., 304 F. Supp. 1254, 1260

(D.D.C. 1969); Gelhorn, The Treatment of Confidential In-

formation by the Federal Trade Commission: Pretrial Prac-

tices, 36 U. CHI. L. REV. 113, 126 (1968).

Appellants’ further contention that prior to disclosure

the FTC should obtain assurances that confidential infor-

mation will not be publicly disclosed unless a majority of

the members of the committee or subcommittee vote to do

so, deserves only perfunctory discussion. Again, we are

sympathetic to appellants’ concern for safeguarding highly

confidential information worth millions of dollars, but for

this court on this record to establish any such requirement

would clearly involve an unacceptable judicial intrusion

into the internal operations of Congress. Although the

courts will intervene to protect constitutional rights from

infringement by Congress, including its committees and

members, e.g., Yellin v. United States, 374 U.S. 109, 143-

144 (1963); Watkins v. United States, supra; United States

v. Ballin, 144 U.S. 1, 5 (1892); Jordan v. Hutcheson, 323

F.2d 597 (4th Cir. 1963), where constitutional rights are

not violated, there is no warrant for the judiciary to inter-

fere with the internal procedures of Congress, e.g., Con-

sumers Union of the United States v. Periodical Corre-

spondents Assoc., 365 F. Supp. 18, 24 (D.D.C. 1973), rev'd

on other grounds, 515 F.2d 1341 (D.C. Cir. 1975); Con-

sumers Union of the United States v. Periodical Corre-

spondents Assoc., 515 F.2d 1341, 1347-1348 (D.C. Cir.

1975). This court cannot assume that Congress will act

irresponsibly in regulating or disclosing appellants’ trade

secrets. Barring the imminence of such disclosure, appel-

lants’ constitutional rights are not in fact jeopardized by

delivery of their secrets to Congress. On this record there

is no justification for this court to interfere with the op-

erations of the legislative branch, see, Frothingham v. Mel-

lon, 262 U.S. 447, 488 (1923); Decatur v. Paulding, 39 U.S.

16a

(14 Pet.) 497 (1840); Protestants and Other Americans for

Separation of Church and State v. O’Brien, 272 F.Supp.

712 (D.D.C. 1967).

It would exceed our jurisdiction for this court to require

guarantees of specific congressional procedures in advance

of any concrete threat to appellants’ vital interests. The

strong and long-standing principle of judicial abstention

into the actions of the legislature demands that the courts,

“avoid the possibility of unwarranted interference with a

coordinate branch of government by requiring dismissal of

applications [seeking to restrain congressional committees’

use of information] not substantiated by a showing of need

arising out of immediate threat to constitutional rights,”

Cole v. McClellan, 439 F.2d 534, 535-536 (D.C. Cir. 1970);

e.g., Davis v. Ichord, 442 F.2d.1207 (D.C. Cir. 1970). Courts

should refrain from creating ‘‘needless friction’’ with a

coordinate branch of government, Railroad Comm'n v.

Pullman Co., 312 U.S. 496, 500 (1941); Ansara v. Eastland,

442 F.2d 751, 753 (D.C. Cir. 1971), and imposing a partic-

ular voting requirement to operate in the manner of a

Congressional Rule, on the grounds that such a safeguard

is necessary to ensure that Congress will act responsibly

with secrets entrusted to it, is not only not refraining from,

but actually provoking such ‘‘needless friction.’’ The FTC

and this court are compelled to rely on the assumption

that Congressional committees will act responsibly with

confidential data revealed to them, Ansara v. Eastland,

supra, 442 F.2d at 754; Ashland Oil v. F.T.C., 409F. Supp.

297, 308 (D.D.C.), aff'd, 548 F.2d 977 (D.C. Cir. 1976).

If, in fact, a Member or congressional staff member

improperly ‘‘leaks’’ confidential data, the injured parties

have a recourse against that individual directly,’ and the

'’ An official or employee of the Commission who makes an

unauthorized public disclosure of confidential information may

be guilty of a misdemeanor, see 16 C.F.R. § 4.10(c); see also, 12

Von Kalinowski, Trade Regulation § 89.04[2] at 89-33 (1977).

17a

possibility of such action will serve to deter unjustified

disclosure of trade secrets. Beyond provision for such

suits, and in the absence of a concrete violation of law, rule

or regulation, the courts are unable to aid the appellants

in their request to oversee the activities of the legislature,

allegations of the prevalence of ‘leaks’ from some com-

mittees notwithstanding. The FTC should, and does, alert

Congress when the information made available to it is

confidential. In fact, some such cautionary statement

could be impliedly required from the prohibition on the

public disclosure of trade secrets imposed by 15 U.S.C.

§ 46(f). If the Commission failed to alert Congress to the

fact that information being supplied to it was by statute

prohibited from ‘‘public’”’ disclosure the Commission would

violate a duty implicitly imposed upon it by the statute.

To impose further protective procedures upon Congress,

without some immediate threat of illegal disclosure, would

impermissibly interfere with the legislative branch—an ac-

tion we refuse to take.

IV

Appellants also ask this court to require the FTC pre-

cisely to ascertain that the Congress specifically desires

access to trade secrets, not merely more general (and less

confidential) data, before it divulges such information. Of

course, the FTC should not simply disclose trade secrets

to Congress ‘“‘sua sponte.’’ The Commission, however, will

invariably know the nature of the information in its pos-

session far more accurately than Congress, and oftentimes

may be aware of data clearly pertinent to an investigation

of which Congress has no knowledge or intimation. We

would not restrict the right, prior to congressional demand,

of the Commission to discuss with Members of Congress

or their staff the general nature of available data and thus

use its expertise to inform the legislature of relevant in-

=.

18a

formation of which the Congress may often be unaware."*

Barring some prohibition, governmental agencies may in-

terchange information. Most problems in this connection

will be obviated if the Commission merely notifies Con-

gress whenever confidential trade secrets are requested or

involved in potential delivery. In III, ante, we noted the

obligation of the Commission to do this.

Vv

It is important to emphasize that our denial of appel-

lants’ requested injunctive and declaratory relief designed

to limit the manner in which the F.T.C. may respond to a

subpoena or formal request issued by Congress, does not

address the question of when such a request or subpoena

has been properly issued. While we are unable to agree

with appellants’ request for advance restrictions on the

Commission’s response to formal requests or subpoena, we

feel that there is ample justification for insisting that the

Commission only reveal statutorily protected trade secrets

when it has indeed received such a proper request or sub-

poena.

'® Imposing a general restriction on the FTC’s ability to assist

Congress in the latter’s investigations would be unjustified par-

ticularly in light of the fact that the Commission was formed in

part to act as an arm of the legislature, assisting Congress in its

investigations. A member of the Conference Committee on the

bill that originally established the F.T.C., Congressman Stevens,

eapiained that:

he Commission] has the power to investigate for the ben-

efit of Congress. It really performs the functions of a com-

mittee of Congress in the line of investigation and compi-

lations and recommendations. It can ascertain all the facts,

as we constitutionally have the power to do, or we can

commit that power to a Commission or to a committee to

do that. That is what we do in this case. It is an especially

valuable function, and its beneficial work will be along the

line of recommendation to Congress and the President. 51

Cong. Rec. 14935 (1914).

19a

There is no doubt that the subpoena power may be

exercised on behalf of Congress by either House, Eastland

v. United Servicemen’s Fund, supra; see 2 U.S.C. § 190b(a)

(1976); House Rule XI cl.2(A), and that the subpoenas

issued by committees have the same authority as if they

were issued by the entire House of Congress from which

the committee is drawn, e.g., In Re Motion to Quash Sub-

poenas and Vacate Service, 146 F. Supp. 792, 794 (W.D.

Pa. 1956). To issue a valid subpoena, however, a committee

or subcommittee must conform strictly to the resolution

establishing its investigatory powers, and only those par-

ties expressly authorized to sign subpoenas may do so

validly. For example, where the resolution granting sub-

poena power to a committee stated that subpoena would

be issued only by the whole committee, not even the Chair-

man himself could individually issue such a document,

Liveright v. United States, 347 F.2d 473 (D.C. Cir. 1965);

see also, Shelton v. United States, 327 F.2d 601 (D.C. Cir.

1963).

The resolution which in Liveright was held not to justify

the Chairman’s issuing a subpoena by himself is nearly

identical to that of 2 U.S.C. § 190b(a) governing the sub-

poene power of Senate committees and subcommittees.

The resolution specified that ‘“‘the committee or any duly

authorized subcommittee thereof is authorized ... to re-

quire by subpoena.’’ Whereas the statute states that

“felach standing committee of the Senate, including any

subcommittee of any such committee is authorized . . . to

require by subpoena or otherwise.’’ The clear intent of 2

U.S.C. § 190b(a), is that only committees or subcommittees

can issue subpoenas in the name of the committee or sub-

committee, and Liveright indicates how narrowly the num-

ber of persons entitled to issue subpoenas is to be inter-

preted.

The purposes behind the limitation on the members of

a committee or subcommittee who may issue subpoenas in

20a

its name is illuminated by the House Rule on this subject:

A Subpena may be authorized and issued by a com-

mittee or subcommittee under subparagraph (1)(B) in

the conduct of any investigation or series of investi-

gations or activities, only when authorized by a ma-

jority of the members voting, a majority being pres-

ent. The power to authorize and issue subpenas under

subparagraph (1)(B) may be delegated to the chairman

of the committee pursuant to such rules and under

such limitations as the committee may prescribe. Au-

thorized subpenas shall be signed by the chairman of

the committee or by any member designated by the

committee.

Rule XI cl. 2 (m)(2)(A) Manual and Rules of the House of

Representatives, 95th Congress (emphasis added).'* This

rule is plainly directed at eliminating the possibility that

an individual member of a committee will—solely on his

own initiative—issue a ‘‘subpoena’’ compelling production

of evidence, and a similar purpose can be discerned in 2

U.S.C. § 190b(a). The principle is important that disclosure

of information can only be compelled by authority of Con-

gress, its committees or subcommittees, not solely by in-

dividual members; and only for investigations and congres-

sional activities. Election to the Congress does not give

individual subpoena power over whatever information (bp

'® The reform rule adopted by the 94th Congress required sub-

poenas to be ‘‘authorized by a majority of the members of the

committee ...’’ Id., cl. 2.(m) (emphasis added). See Ashland Oil,

Inc., v. FTC, 548 F.2d 977, 985-991 (D.C. Cir. 1976). The reform,

however, was short lived, as the 95th Congress changed the rule

to only require ‘‘a majority of the members voting, a majority

being present.”’

The Senate rule authorizes “‘[eJach standing committee .. . in-

cluding any subcommittee of any such committee .. . to require

by subpoena or otherwise the attendance of such witnesses and

the production of such ... documents [etc.] ... as it deems ad-

visable.”” Rules and Manual of the United States Senate, 95th

Congress, § 190b.(a), p. 363 (1977).

2la

may happen to be interested in, and particularly not over

trade secrets, whose oftentimes enormous value may be

forfeited by disclosure to the public.

Although once a committee or subcommitte has in fact

requested trade secret information, the separation of pow-

ers demands that the courts do little to interfere with how

the Congress deals with this information; it is only when

a formal committee or subcommittee request, or request

by the committee chairman pursuant to an authorized in-

vestigation or activity, has been made that the doctrine of

separation of powers becomes relevant at all. And as Con-

gress itself has manifested a concern to prevent the issu-

ance of subpoenas by individual members as opposed to

committees, subcommittees or duly authorized committee

chairmen, it is appropriate to require the FTC to take steps

to ascertain the validity of a subpoena (or the formal re-

quests it treats as subpoenas) before it releases data it is

required by statute to be kept confidential.

Since the Freedom of Information Act makes a great deal

of information available to the public and the FTC may

volunteer certain ordinary information without any formal

request, there does not seem to be any need for requiring

the F.T.C. to determine whether or not a request for such

information is in fact a proper formal request or subpoena.

However, trade secrets are explicitly excluded from that

material which the Commission may in its good discretion

‘‘make public.”’ 15 U.S.C. § 46(f), supra. See Bristol-Meyers

Co. v. FTC, 424 F.2d 935, 938 (D.C. Cir.), cert. denied, 400

U.S. 824 (1970). We thus note that Congress intended to

prohibit the FTC from disclosing ‘‘trade secrets’’ and can-

not therefore assume that it meant to allow divulgement

of these secrets upon the casual request of individual Con-

gressmen.” Accordingly, although we do not require the

2 We note that, in another context, Congress has manifested

its solicitude to protect the interests of those individuals who

are forced to entrust confidential data to agencies, see, e.g., H.R.

22a

FTC to observe the procedures proposed by the appellants

to limit the manner in which the Commission responds to

formal requests for trade secrets from Congress or its com-

mittees it is nothing more than common sense for the FTC

to not disclose trade secrets except upon legally authorized

requests thereforg’and to verify that fact before delivery.

Trade secrets, by statute, are in a different position than

ordinary non-confidential information within the posses-

sion of the Commission.

In this particular appeal, it does not clearly appear that

the request sent to the FTC by Senator Hart was a ‘‘formal

request”’ authorized by the Subcommittee. The Commis-

sion, however, may have been previously informed of sub-

committee action that satisfied the necessary formalities.

The Senate rules empowered the Chairman of the Subcom-

mittee on Anti-Trust and Monopoly to issue subpoenas for

proper purposes authorized by the subcommittee, and the

requests presented to the FTC in this case were signed by

Senator Hart, on official stationery and asked that “the

Commission make available to the Subcommittee that data

which it has gathered on coal and uranium reserves.”’ (Em-

phasis added). When the Commission receives such a letter

and it has knowledge that said investigation has been duly

authorized, it is reasonable of it to treat it as an authorized

formal request. Had Senator Hart himself written in a

capacity other than that of Subcommittee Chairman, or

had some other senator on the committee requested the

confidential data, however, the statutory protection due to

confidential trade secrets in the hands of the Commission,

see 15 U.S.C. § 46(f); FTC v. Texaco, Inc., supra, 517 at

151, demands that it not release such sensitive information

Rep. No. 1497, 89th Cong., 2d Sess. 6 (1966) (a report on the bill

that became the Freedom of Information Act of 1967); see gen-

erally, Note, Reverse-Freedom of Information Act Suits: Confi-

dential information in Search of Protection, 70 NW.U.L.REV.

995 (1976).

23a

without verifying that the request satisfies the require-

ments of the controlling congressional rule.

VI

As a final point, the fact that appellants are appealing

from the district court’s refusal to grant equitable relief

places an exceptionally heavy burden on them if they are

to succeed before this court. Not only does an appeal from

a denial of injunctive relief require a showing that the trial

court abused its discretion, Public Affairs Associates, Inc.

v. Rickover, 369 U.S. 111, 112 (1962); Hecht Co. v. Bowles,

321 U.S. 321 (1944); Meredith v. City of Winter Haven,

320 U.S. 228, 235 (1943); Independent Bankers Assoc. of

America v. Smith, 534 F.2d 921 (D.C. Cir.), cert. denied,

429 U.S. 862 (1976), but also the burden on these particular

appellants is considerably heightened by the clear public

interest in maximizing the effectiveness of the investiga-

tory powers of Congress. The welfare of the public is a

factor to be weighed in determining whether or not to issue

an injunction, e.g., Yakus v. United States, 321 U.S. 414

(1944); Hecht Co. v. Bowles, supra; Harrisonville v. W. S.

Dickey Clay Mfg. Co., 289 U.S. 334 (1933); United States

v. American Tobacco Co., 221 U.S. 10 (1911), and the in-

vestigatory power is one that the courts have long per-

ceived as essential to the successful discharge of the leg-

islative responsibilities of Congress, McGrain v. Daugh-

erty, supra.

It would, then, require an extremely strong showing by

the appellants to succeed in obtaining an injunction in

light of the compelling public interest in denying such

relief. Furthermore, there is no significant private injury

present here to weigh against the public interest in un-

impeded congressional investigation, see Ohio Oil Co. v.

Conway, 279 U.S. 813 (1928); 7 J. MOORE, FEDERAL

PRACTICE 4 65.18[3] at 65-138. Given the presump-

tion of congressional propriety discussed above, see

Pe

24a

also, Ansara v. Eastland, supra—there is no risk of

imminent injury to appellants. Injunctions, however,

will not issue to prevent injuries neither extant nor

presently threatened, but only merely ‘‘feared,’’ Con-

necticut v. Massachusetts, 282 U.S. 660 (1931). To

grant the injunction appellants request, this court

would be required to interfere with the operation of

Congress, and also to depart from traditional doctrine

concerning the availability of equitable relief. Finding

no justification for granting the relief requested by

appellants, we affirm the judgment of the district

court in its entirety.

Judgment accordingly.

25a

United States Cowt of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1978

No. 77-1302

EXXON CORPORATION,

Appellant

Vv.

FEDERAL TRADE COMMISSION, et al.

And Consolidated Case Nos. 77-1303 and 77-1304

BEFORE: Robinson, MacKinnon, and Robb;

Circuit Judges

Order

Filed Dec. 6, 1978

Upon consideration of the petition for rehearing filed by

appellant, it is

ORDERED, by the Court, that appellant’s aforesaid pe-

tition for rehearing is denied.

Per Curiam

FOR THE COURT:

/s/ GEORGE A. FISHER

George A. Fisher

Clerk

Sat. of BOX. ot Ss oe

26a

United States Cot of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1978

No. 77-1302

EXXON CORPORATION,

Appellant

v.

FEDERAL TRADE COMMISSION, et al.

And Consolidated Case Nos. 77-1303 and 77-1304

BEFORE: Wright, Chief Judge; Bazelon, Leventhal,

Robinson, MacKinnon, Robb, and Wilkey,

Circuit Judges

Order

Filed Dec. 6, 1978

Upon consideration of the suggestion for rehearing

en banc filed by appellant Exxon Corporation, and a

majority of judges of the Court in regular active serv-

ice not having voted in favor thereof, it is

ORDERED, by the Court, en banc, that appellant’s afore-

said suggestion for rehearing en banc is denied.

Per Curiam

FOR THE COURT:

/s/ GEORGE A. FISHER

George A. Fisher

Clerk

27a

Judge Bazelon votes to rehear this case en banc to consider

the important questions this case raises under Eastland v.

United States Servicemen's Fund, 421 U.S. 491 (1975).

Statement of Circuit Judge Wilkey as to why he voted for

rehearing en banc is attached hereto.

a a

28a

fr

No. 77-1302 EXXON CORPORATION, et al. v. FEDERAL

TRADE COMMISSION, et al.

Statement of Circuit Judge Wilkey as to why he voted for

rehearing en bane:

As a preliminary matter, it should be noted that not all

judges of this court were able to vote on the question of

rehearing en banc because of necessary recusals. This is

somewhat comparable to our previous case of Federal

Trade Commission v. Texaco, Inc., 555 F.2d 862 (D.C. Cir.,

en banc), cert. denied, 431 U.S. 974 (1977), in which only

six of the nine members of the Court were able to partici-

pate, and which resulted in a 4-2 decision on a related

matter of Federal Trade Commission subpoenas to the

petroleum industry. In my view, the necessary disqualifi-

cation of judges produces a thoroughly unsatisfactory sit-

uation, either for the preliminary voting for rehearing en

banc or for the determination of any important issue. Ob-

viously, the Supreme Court cannot grant certiorari on all

cases in which the full Circuit was unable to participate,

although this might be an additional factor commending

the case for certiorari review.

On the merits of the panel’s decision here, I am quite

perplexed at the logic of the result reached. The court

correctly states, ‘““The issue before us concerns solely the

question of notice to parties prior to disclosure of their

confidential information and of safeguards to insure the

continued confidentiality of such information once it is

disclosed to the Congress.’”’ (Slip op. 4) The issue in this

particular case is thus not whether these particular docu-

ments should be disclosed to the Congressional committee,

but whether the private parties who furnished the docu-

ments to the agency on a pledge of confidentiality should

have notice of the planned disclosure of the documents

before all rights of confidentiality in those documents are

mooted by the disclosure itself.

29a

It appears implicit in the panel’s opinion (slip op. 8, 16-

21) that the court holds that the private parties do have a

right to judicial review of the request prior to disclosure,

thus to avoid irretrievably mooting the question of confi-

dentiality, yet strangely the court winds up holding that

the agency need not give the private party any advance

notice of a proposed disclosure—a holding which thus ef-

fectively precludes any judicial review of the legal issue of

whether disclosure is proper. The panel thus recognizes

the private parties’ substantive and procedural rights, but

simultaneously renders them totally unenforceable and

meaningless.

This is not a problem which involves oil companies only.

The rule laid down by the panel is a general rule on the

authority of Congressional committees to request and ob-

tain from any federal agency confidential information fur-

nished to it by a private party. This rule permittir zg dis-

closure without any notice whatsoever is equally applicable

to all kinds of information protected from disclosure by

anyone of numerous constitutional and statutory provi-

sions. Congress’ and the courts’ oft expressed concern for

privacy, for example, would be completely vitiated by this

general rule.

While the panel’s decision discusses Eastland v. United

States Servicemen’s Fund, 421 U.S. 491 (1975), it nowhere

confronts the holding of Eastland that where a Congres-

- sional subpoena has been issued for information relating

to a private party, but which is in the possession of another

entity, the affected private party has an affirmative right

to judicial review of the Congressional request before dis-

closure is made. 421 U.S. at 496 n.9, and 501 n.14. Under

the panel’s strange rationale, while the right to judicial

review of the propriety of the Congressional action is rec-

ognized, just as it was in Eastland, the panel destroys the

right to the judicial review it recognizes and which was

granted in Eastland by its illogical holding that the private

30a

party affected has no right to notice which would enable

him to seek judicial review.

This ruling applies to more than the trade secret docu-

ments of oil companies. It strikes down the protection of

judicial review where constitutional rights are affected. It

should not stand.