# Petition — Exxon Corp. v. Federal Trade Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 943

## Text

.” 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2403%3A1. Public record. Not legal advice.