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

_, =_ Ss

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Supreme Court i

FILED

IN THE

Supreme Court of the United

OcToBER TERM, 1978

GTE SyYLvan1A, INCORPORATED, RCA CorPoRATION, THE

MaGNAvox COMPANY, ZENITH RaApio CORPORATION,

Mortoroua, INc., WARwicK ELEcTRONICS, INc., AERO-

NUTRONIC ForRD CORPORATION, MATSUSHITA ELECTRIC

CORPORATION OF AMERICA, SHARP ELECTRONIC CORPORA-

TION, TosHrBA-AMERICA, INcC., GENERAL ELECTRIC

CoMPANY, ADMIRAL CORPORATION, Petitioners,

7.

CoNSUMERS UNION OF THE UNITED States, INc., PUBLIC

CITIZEN’s HeraLtTH RESEARCH GrOoUP, CONSUMER

Propuct SaFETy CoMMISSION, RicHarRD O. SIMPSON,

BarBARA H. FRANKLIN, LAWRENCE KUSHNER, CON-

STANCE NEWMAN, R. Davin PiTrie, SapvyE Dunn,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Harry L. SHNIDERMAN

James M. McHaney, JR.

Covineton & Bur.ine

888 -16th Street, N.W.

Washington, D.C. 20006

Tel: (202) 452-6196

Attorneys for GTE Sylvania,

Incorporated, and Aeronutronic

Ford Corporation

BerNarD G. SEGAL Rosert W. STEELE

Cuar.es C. Hiemay, III Aan M. GRIMALDI

Deena Jo SCHNEIDER Howrey & Stmon

ScHNaADER, HARRISON, 1730 Pennsylvania Avenue,

Seca & Lewis N.W.

1719 Packard Building Washington, D.C. 20006

Philadelphia, Pa. 19102 Attorneys for General

Attorneys for RCA Electric Company

Corporation

[Names of Other Counsel on Inside Cover]

StepHen B. Clarkson

SuL.ivan, BEAUREGARD,

CiarKkson, Moss, Brown

& JoHNSON

1800 M Street, N.W.

Washington, D.C. 20036

Attorneys for The Magnavox

Company and Zenith

Radio Corporation

Watters T. KunLMeEy

Krrxuanp & Ex1is

200 E. Randolph Drive

Chicago, Illinois 60601

Attorneys for Motorola, Inc.

Wu F. Parren

D. Currrorp Crook, IIT

Wiuxes & Artis

1666 K Street, N.W.

Suite 608

Washington, D.C. 20006

Attorneys for Warwick

Electronics, Inc.

Burton Y. WEITZENFELD

MicHag. A. Strece.

Arnstern, GivcK,

WertzenreLtp & Minow

75th Floor, Sears Tower

Chicago, Illinois 60606

Attorneys for Warwick

ara te Inc.

February 12, 1979

Nancy L. Buc

Wet, GotsHatt & Mances

1101 Connecticut Avenue,

N.W.

Washington, D.C. 20036

Attorneys for Matsushita

Electric Corporation of

America

Peter GARTLAND

J. Portis Hicks

Wenpver, Murase & WHITE

400 Park Avenue

New York, New York 10022

Attorneys for Sharp

Electronic Corporation

LAWRENCE R. WaLDERS

Tanaka, WaLpers & Rircer

1819 H Street, N.W.

Washington, D.C. 20006

Attorneys for Toshiba-

America, Inc.

J. Watuace Aparr

Howrey & Smwon

a Seti Avenue,

Washington, D.C. 20006

Attorneys for Admiral

Corporation

TABLE OF CONTENTS

Page

ED EE ET TET 2

EO ee eee 2

EE SE LEE 2

CoNSTITUTIONAL AND Statutory Provisions InvoLvep.. 4

Ga wedacasssseevccccces 5

Reasons FOR GRANTING THE WRIT ............+-00005 14

a Dia ckeaWesavecocscees 31

TABLE OF CITATIONS

CasEs:

Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th

ir.), cert. denied, 423 U.S. 908 (1975) ..........

Aetna Fa Insurance Co. v.. Haworth, 300 U.S. 227

CEM CRWENGEUG. dats PU TEN che hs 8 48Ns cee dsees

American Servicemen’s Union v. Mitchell, 54 F.R.D.

I, re Coc ete ccev cess

Baker v. Carr, 369 U.S. 186 (1962) ...............0..

Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902) ...

Chrysler Corp. v. Brown, et al., No. 77-922 (argued

Nov. 8, 1978), 47 U.S.L.W. 3330 ................

Colorado River Water Conservation District v. United

I CEE specks ccccveceves

Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)

Edwards v. Schlesinger, 377 F. Supp. 1091 (D.D.C.),

rev'd on other grounds sub nom. Waldie v. Schles-

inger, 509 F.2d 508 (D.C. Cir. 1974) ............

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

GTE Sylvania, Inc. v. Consumer Product Safety Com-

mission, 404 F. Supp. 352 (D. Del. 1975) ........

GTE Sylvania, Inc. v. Consumer Product Safety Com-

mission, 438 F. Supp. 208 (D. Del. 1977) ........

GTE Sylvania, Inc. v. Consumer Product Safety Com-

mission, 443 F. Supp. 1152 (D. Del. 1977) ........

ii Table of Citations Continued

Page

Juidice v. Vail, 480 U.S. 327 (1977) ....... opine sees 16

Kerotest Manufacturing Co. v. C-O-Two Fire Equip-

ment Co., 342 U.S. 180 (1952) ................ 28, 29

Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir.), cert.

denied, 379 U.S. 904 (1964) ..............000. 29-30

Link v. Wabash R.R., 370 U.S. 626 (1962) .......... 19

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

ERR COL Va seb bideiiiee sce ose ose 30

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312

U.S. 270 (1941)

Moore v. Charlotte-Mecklenburg Board of Education,

402 U.S. 47 (1971) (per curiam) ............. 6, 16-17

National Licorice Co. v. NLRB, 309 U.S. 350 (1940) ..

O’Shea v. Littleton, 414 U.S. 488 (1974) .............

Parklane Hosiery Co. v. Shore, —— U.S. ——, 99 8.Ct.

Se AEE Wass ch gee EES EI Leah ee Les 9-0.04.0-00

Pepsico, Inc. v. FTC, 472 F.2d 179 (2d Cir. 1972),

cert. denied, 414 U.S. 876 (1978) ...............

Pharmaceutical Manufacturers Association v. Food

and Drug Administration, et al., C.A. No. 77-291

ED” 2 Neer eet: Abpea Tk eae

Pierce & Stevens Chemical Corp. v. Consumer Product

Safety Commission, —— F.2d ——, No. 78-6135

(2d Cir. December 14, 1978) ..........2..0.000

Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102 (1968)

Torquay Corp. v. Radio Corp. of America, 2 F. stn

841 (S.D.N.Y. 1932)

United Public Workers v. Mitchell, 330 U.S. 75 (1947)

United States v. Citizens National Trust & Savings

Bank, 166 F. Supp.

970 F.2d 128 (9th Cir. 1959) ..........000eeees

Velsicol Chemical rho’ 5

)

1038 (7th Cir. 1

16

26

26

26

23

19

Fee ASOT RSE CK 0 6 6 21, 24

St. Louis Amusement Co. v. Paramount Pictures, Inc.,

61 F. Supp. 854 (E.D. Mo.), appeal dismissed, 326

U.S. 680 (1945), aff’d on other grounds, 168 F.2d

988 (8th Cir. 1948) a i

Southwest Airlines Co. v. Texas International Airlines,

v3 re ae 84 (5th Cir.), cert. denied, 434 U.S. 832

| Sere ee ra error ry Cr Orr eae

Pa ck v. All Continent Cerp., 301 U.S. 278 (1937) ..

410 (S.D. Cal. 1958), aff’d,

v. Monsanto Co., 579 F.2d

30

25

29

Table of Citations Continued iii

Page

STATUTES:

United States Constitution, Article ITI, Section 2 . .4, 15, 16

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

2 BER ee ae ee pee re payee eee a 25

emt GED Un Ae ak kiss vac dcudianesdions 8

Freedom of Information Act, 5 U.S.C. § 552

SEGUE BAAAAA KES VacsnebhadaewallGenbdenscunee passim

SD Te COE ii a inks casero teiwansabieel 8

Se aes RUPEES (ANNE Soc anweaabs ceenrboceen ees 2

28 U.S.C. §1391(e) (1976), P.L. 87-748, 76 Stat. 744

CE uh «5554 4 50k 6 a0 5 bs DER K ASKS Recah Dies 22

Pe, SU: Rs MN IY nd kOe cnc ccaneeddenSaen 10, 24, 26

Bee Gels WC I RG ob as ae cnctaasisucoetecabanes 28

MISCELLANEOUS:

S. Rep. No. 1992, 87th Cong., 2d Sess. (1962) ........ 22

7 Wricut & Miuier, Feperan Practice anp PRoceDURE:

Cs Sa REE Lo onu acted cea eee bbaeahans 28

——_

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No.

GTE Sytvan14, [IncorporaTeD, RCA CorporaTION, THE

MAGNAVOX COMPANY, ZENITH Rapi1o CORPORATION,

Mortoroua, INc., Warwick ELEctTRONICcS, INc., AERO-

NUTRONIC Ford CorPoraATION, MATsusHITA ELECTRIC

CoRPORATION OF AMERICA, SHARP ELECTRONIC CORPORA-

TION, TosHrIBA-AMERICA, INc., GENERAL ELECTRIC

CoMPANY, ADMIRAL CORPORATION, Petitioners,

Vv.

CoNsUMERS UNION OF THE UNITED StatTEs, INc., PUBLIC

CiTIzEN’s HEALTH RESEARCH GROUP, CONSUMER

Propuct Sarety CoMMIssIOon, RicHarpD O. SIMPSON,

BarsaRA H. FRANKLIN, LAWRENCE KUSHNER, CON-

STANCE NEWMAN, R. Davin PitTie, SapyE Dunn,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners respectfully pray that a writ of certi-

orari issue to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit

entered on December 22, 1978.

2

OPINIONS BELOW

The opinion of the Court of Appeals (A.1-A.24) of

which review is sought has not yet been reported. The

original opinion and judgment of the Court of Appeals

(A.44-A.59), which this Court summarily vacated on

granting certiorari (A.64), 434 U.S. 1030 (1978), is re-

ported at 561 F.2d 349, reh. denied, 565 F.2d 721 (D.C.

Cir. 1977) (per curiam). The opinion of the United

States District Court for the District of Columbia

(A.32-A.42) is reported at 400 F. Supp. 848 (D.D.C.

1975).

JURISDICTION

The judgment of the Court of Appeals was entered

on December 22, 1978, and this petition for certiorari

is being filed within 90 days of that date. On January

23, 1979, the Court of Appeals granted a stay of its

mandate to and including February 12, 1979 pending

the filing of petitions for certiorari.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1) (1976). Jurisdiction in the District

Court was based on the Freedom of Information Act,

5 U.S.C. § 552 (1976).

QUESTIONS PRESENTED

(1) Does an action initiated pursuant to the Free-

dom of Information Act (‘‘FOIA’’) to compel release

of information present the constitutionally required

‘‘case’’ or ‘‘controversy” where the plaintiffs and the

governmental agency against which the action is

brought desire precisely the same result, namely re-

lease to the plaintiffs of the information which the

plaintiffs seek, and where the defendant agency has

not released the information solely because it has been

permanently enjoined from doing so by another fed-

eral district court in separate litigation instituted

against it by the suppliers of the information?

3

(2) Has a governmental agency ‘‘improperly with-

held”’ information within the meaning of the FOIA

(5 U.S.C. § 552(a) (4) (B)) where the defendant agency

has not released the information sought by the plain-

tiffs solely because it has been permanently enjoined

from doing so by another district court?

(3) Are two sophisticated requesters of informa-

tion under the FOIA precluded from prosecuting an

FOIA action to compel a governmental agency to re-

lease information where another district court has

permanently enjoined the agency from publicly releas-

ing the information and where the requesters purposely

bypassed ample opportunities to intervene in the other

district court? ;

(4) Is the Consumer Product Safety Commission—

an agency charged with informing the public of con-

sumer product safety hazards—as a matter of law an

inadequate representative in a ‘‘reverse-FOIA”’ ac-

tion of the interests of FOIA requesters, so that a per-

manent injunction entered in that action forbidding

the Commission from disclosing specified information

does not preclude the requesters who chose not to in-

tervene from later prosecuting, in another district

court, an FOIA action to compel the Commission to

disclose the specified information ?

(5) Has the Court of Appeals for the District of

Columbia Circuit erred in setting its own district court

on a collision course with a district court in another

circuit by (a) directing its own district court to de-

termine whether an agency should be compelled to re-

lease certain information under the FOIA when the

district court in the other circuit has permanently en-

joined the agency from releasing the information and

(b) suggesting to its district court that it may enjoin

the enforcement of the permanent injunction ?

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 2 of Article ITI of the United States Con-

stitution provides in relevant part as follows:

‘‘The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitu-

tion, the Laws of the United States, and Treaties

made, or which shall be made, under their Author-

ity; . . . to Controversies to which the United

States shall be a Party;—to Controversies be-

tween two or more States ;—between a State and

Citizen of another State;—between Citizens of

different States... .’’

The Freedom of Information Act, 5 U.S.C. § 552,

provides in relevant part as follows:

“(a)(3) ... each agency, upon any request for

records which (A) reasonably describes such rec-

ords and (B) is made in accordance with pub-

lished rules stating the time, place, fees (if any),

and procedures to be followed, shall make the rec-

ords promptly available to any person.

**(a)(4)(B) On complaint, the district court of

the United States in the district in which the com-

lainant resides, or has his principal place of

usiness, or in which the a records are situ-

ated, or in the District of Columbia, has jurisdic-

tion to enjoin the agency from withholding agency

records and to order oe ore of any agency

records improperly withheld from the complain-

Ade

= Je véin 62 sainneiieasaenaneiednaaaa

4)

STATEMENT

Less than thirteen months after this Court sum-

marily vacated in this action an earlier decision of the

United States Court of Appeals for the District of

Columbia Circuit petitioners are constrained to seek

review of a second decision of the Court of Appeals.

Once again that Court has remanded this action to the

United States District Court for the District of Co-

lumbia for determination of whether certain informa-

tion obtained by the Consumer Product Safety Com-

mission (‘‘CPSC”) from the petitioners should be dis-

closed to plaintiffs-respondents Consumers Union of

the United States, Inc. and Public Citizen’s Health

Research Group (collectively ‘‘the requesters”) pur-

suant to the Freedom of Information Act (“FOIA’’),

even though the United States District Court for the

District of Delaware has permanently enjoined such

disclosure.

More particularly, just over a year ago, this Court

remanded this case ‘‘for further consideration in light

of the permanent injunction entered by the United

States District Court for the District of Delaware

... (A.64). 434 U.S. 1030 (1978). That permanent

injunction, entered in a ‘‘reverse-FOIA”’ case insti-

tuted against the CPSC by petitioners, prohibits the

CPSC from disclosing to any member of the public

the very information sought by the requesters in this

case. Following this Court’s remand, the Court of

Appeals reconsidered the matter but now has reaf-

firmed its prior decision directing its District Court

to decide the merits of the requesters’ FOIA action,

t.e., whether the CPSC should disclose the information

to them, notwithstanding the final injunction entered

in the Delaware litigation. Significantly, the Court

6

went on to suggest that its District Court consider

enjoining petitioners from enforcing the Delaware in-

junction if it reaches a conclusion contrary to that

reached by the Delaware Court. It thus is apparent

that the Court of Appeals views the final injunction

entered in the Delaware litigation as virtually mean-

ingless.

In reaching its decision, the Court of Appeals dis-

agreed with its District Court, which originally dis-

missed this action because there was no ‘‘case’’ or

‘‘controversy’’ between the parties, since the plaintiff

requesters and the defendant CPSC both desired the

same result, t.e., release of the information, and the

CPSC had refrained from releasing the information

to the requesters only because of outstanding orders

in the Delaware litigation. The Court of Appeals’ re-

versal of this ruling does violence to the ‘‘case’’ or

‘‘econtroversy’’ requirement of the United States Con-

stitution, is squarely contrary to decisions of this Court,

e.g., Moore v. Charlotte-Mecklenburg Board of Edu-

cation, 402 U.S. 47, 48 (1971) (per curiam), and should

not be permitted to stand.

The Court of Appeals’ decision also flies in the face

of the FOIA itself, which only authorizes suits to ob-

tain information being ‘‘improperly withheld”’ by the

agency involved. Surely, refusing to disclose informa-

tion because of a court order prohibiting disclosure of

the information is not improper.

Moreover, in ordering the District of Columbia to

forge ahead on a collision course with the District of

Delaware, the Court of Appeals ran roughshod over

established principles of comity and the finality of

judgments of coordinate federal courts. Its decision

fae OAD SURI GL NT a Oi.

at ln 8 ARI NO A

7

to permit the requesters to pursue their own FOIA

action, despite their timely notice of and deliberate

refusal to participate in the Delaware proceedings,

ignores the lengthy and hard-fought battle that has

already taken place between petitioners arguing against

disclosure of the information and the CPSC arguing

for its purported right to release the information and

the purported right of the public, including the re-

questers, to obtain it. The decision will force petition-

ers to relitigate in the District of Columbia the dispute

they finally have won in Delaware and creates for the

CPSC the potential dilemma of facing two conflicting

injunctions of different federal courts, one prohibiting

and the other requiring release of the very same in-

formation. These are results that should not be coun-

tenanced by this Court.

The Court of Appeals’ decision is of particular sig-

nificance because of its impact on other FOIA and

reverse-FOIA litigation. If upheld, the essential hold-

ing of this case—that those requesting information

from a governmental agency under the FOIA are never

bound by an order enjoining the agency from releasing

the information unless they were parties to the re-

verse-FOIA case in which the injunction was entered

—will render meaningless reverse-FOIA proceedings

because of the impossibility of joining all actual and

potential FOIA requesters in reverse-FOIA proceed-

ings. The decision thus not only is erroneous but is of

far-reaching impact and raises crucial questions merit-

ing review by this Court.

The procedural history of this matter is complex,

involving lengthy proceedings in two different federal

district courts and two reviews by the Court of Ap-

peals for the District of Columbia Circuit. Upon learn-

8

ing in April 1975 of the CPSC’s final determination

to release their submissions to the requesters purport-

edly pursuant to the FOIA, the manufacturers imme-

diately brought suit in various federal judicial dis-

tricts against the CPSC to enjoin the threatened dis-

closure on the grounds that such release was barred,

inter alia, by exemptions to the FOTIA, 5 U.S.C. § 552

(b) (1976); by Section 6 of the Consumer Product

Safety Act (‘‘CPSA”), 15 U.S.C. § 2055 (1976) ; and

by a provision of the Criminal Code, 18 U.S.C. § 1905

(1976). The actions ultimately were consolidated be-

fore Chief Judge Latchum in the District of Delaware,

most of them having been brought in that district and

the actions filed elsewhere having been transferred

there at the request of the CPSC.

Temporary restraining orders prohibiting the dis-

closure of the information pendente lite were entered

shortly after commencement of the manufacturers’ ac-

tions. Then, on October 23, 1975, after extensive brief-

ing and argument, Judge Latchum preliminarily en-

joined the CPSC from disclosing the information ‘‘in

any manner’’ pending further order of the Court on

the ground that Section 6(b)(1)* of the CPSA pro-

hibited disclosure (A.71-A.107). GTE Sylvania, Inc. v.

* This provision reads in relevant part:

‘*The [CPSC] shall take reasonable steps to assure, prior to

its public disclosure thereof, that information from which the

identity of [a] manufacturer or private labeler may be readily

ascertained is accurate, and that such disclosure is fair in the

circumstances and reasonably related to effectuating the pur-

poses of this [ Act].’’

Judge Latchum found that the CPSC had deliberately sub-

poenaed unverified and inaccurate information, disclosure of which

would be misleading to the public and unfair to the manufacturers

(A.98-A.104).

—_

oS 8 RS ce a eo es

9

Consumer Product Safety Commission, 404 F. Supp.

352 (D. Del. 1975). The preliminary injunction re-

mained in effect until December 8, 1977, when, after

further briefing and argument, Judge Latchum granted

the manufacturers’ motions for summary judgment and

permanently enjoined disclosure of the information at

issue (A.118-A.138; A.139-A.141). 443 F. Supp. 1152

(D. Del. 1977). The CPSC has appealed from Judge

Latchum’s permanent injunction (A.139-A.141) and

the case is now pending in the United States Court of

Appeals for the Third Circuit. Oral argument was held

on January 8, 1979 and the case is under advisement.

Subsequent to the commencement of the manufac-

turers’ actions and the entry of temporary restraining

orders, the requesters instituted the instant action in

the District of Columbia under the FOIA to compel

the CPSC to release the accident information which

had been submitted by the manufacturers and which

was, as the requesters acknowledged in their complaint,’

the subject of the Delaware litigation. On September

23, 1975, the United States District Court for the Dis-

trict of Columbia granted defendants’ motions to dis-

miss the requesters’ action on the grounds that (1) the

complaint sought no relief against the television manu-

facturers and (2) there was no justiciable ‘‘case’’ or

‘‘controversy’’ between the requesters and the CPSC,

since those parties agreed that the information at issue

should be released to the requesters and thus were not

true adversaries (A.32-A.42). Consumers Union of the

United States, Inc. v. Conswmer Product Safety Com-

mission, 400 F'. Supp. 848, 851 (D.D.C. 1975). In dis-

missing the complaint, Judge Richey ruled that he

? See Para. 10 of the complaint (A.25-A.31, at A.29).

10

should not re-examine or countermand the temporary

restraining orders entered in the Delaware litigation,

which had been issued by a court of competent juris-

diction concurrent with that of his own (A.39-A.40).

Judge Richey also explicitly noted the appropriateness

of intervention by the requesters in the Delaware litiga-

tion (A.42). Rather than pursue this course, however,

the requesters remained aloof from the proceedings in

Delaware* and appealed the dismissal of their com-

plaint to the United States Court of Appeals for the

District of Columbia Circuit.

On July 5, 1977, the Court of Appeals (opinion by

Wright, J. for 1 panel consisting of himself and Baze-

lon, C.J. and Robinson, J.) reversed Judge Richey’s

holding that there was no ‘‘case” or ‘‘controversy’’

and remanded the case with instructions for him to

proceed promptly to determine ‘‘quite simply, whether

* The requesters are participating in the appeal from the Dela-

ware injunction as amici curiae asserting that they were necessary

or indispensable parties to the District Court proceedings under

Rule 19 of the Federal Rules of Civil Procedure. They have asked

the Third Circuit to vacate Judge Latchum’s pefmanent injunction

and to instruct the District Court either to-dismiss the action or to

transfer the litigation to the District of Columbia where they may

be joined and where their own action is pending. While the request-

ers argued both in their briefs and in oral argument before the

Third Cireuit that they cannot be bound by the Delaware injunc-

tion since they were not parties to the proceedings which led to the

injunction, they studiously avoided many invitations to intervene

in the Delaware proceedings on the merits, including an invitation

extended by Judge Latchum on September 15, 1977 in denying the

CPSC’s motion to transfer the Delaware cases to the District of

Columbia (A.109-A.117, at A.112 n.9, A.114), 438 F. Supp. 208, 211

n.9, 212 (D. Del. 1977), and numerous invitations from the manu-

facturers. Nor did the requesters ever attempt to present to Judge

Latchum the Rule 19 issue they now are pressing as amici on the

CPSC’s appeal from the Delaware injunction—whether by inter-

vening, appearing as amici, or requesting the CPSC to raise the

issue on their behalf.

— ine eo

1]

or not the documents should in fact be disclosed’’

(A.44-A.59, at A.58). 561 F.2d 349 (D.C. Cir. 1977).

The Court perceived the necessary ‘‘case’’ or ‘‘contro-

versy’’ to exist in (1) a supposed disagreement between

the requesters and the CPSC over whether the then

outstanding preliminary injunction entered by Judge

Latchum “‘unequivocally preclude[d]’’ the CPSC from

providing the requesters with the information in ques-

tion and (2) the Court of Appeals’ suspicion that the

CPSC did not really want to release the information

because, in the Court’s view, the CPSO’s early conduct

of the Delaware litigation was ‘‘not easily reconcilable

with its ostensible acceptance of [the requesters’] ar-

gument that the requested documents should be dis-

closed’’ (A.53). The Court erroneously concluded that,

in any event, the Delaware litigation had been aban-

doned and that the preliminary injunction was “dead’’

(A.57).* The Court also held that even if the prelim-

inary injunction were still in existence, it could not be

given preemptive effect because no private party re-

*In fact, the preliminary injunction was very much ‘‘alive.’’

On August 20, 1976, the Delaware court had issued a ‘‘minute

order’’ instructing the clerk ‘‘to submit a JS-6 form to the Ad-

ministrative Office and close these cases for statistical purposes’’

(A.108). The minute order provided :

**Nothing contained herein shall be considered a dismissal

or disposition of the matter and should further proceedings

become necesary or desirable, any party may initiate in the

same manner as if this order had not been entered.’’ (A.108)

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

preliminary injunction remained in effect even after entry of the

minute order and it was equally clear to Judge Latchum, Indeed,

at a conference held on July 11, 1977, Judge Latchum specifically

stated that the minute order ‘‘didn’t dispose of the case’’ and

‘*didn’t dismiss the action’’ and that ‘‘the preliminary injunction

... remains outstanding.’’

12

questing disclosure of the information had partici-

pated in the Delaware proceedings and, in the Court’s

view, the CPSC had not adequately represented the

pro-disclosure position (A.58). Petitions for rehear-

ing, together with suggestions for rehearing en banc,

were denied (A.60-A.63), 565 F.2d 721 (D.C. Cir. 1977)

(per curiam), but the Court of Appeals’ mandate was

stayed to allow the manufacturers to file a petition

for a writ of certiorari.

On December 8, 1977, after the petition for writ of

certiorari was filed, Judge Latchum issued the per-

manent injunction prohibiting release of the informa-

tion at issue (A.139-A.141). This fact was promptly

brought to the attention of this Court. On January 16,

1978, this Court granted the petition, summarily va-

eated the Court of Appeals’ judgment, and remanded

the case to the Court of Appeals ‘‘for further consid-

eration in light of the permanent injunction entered by

the United States District Court for the District of Del-

aware...’ (A.64). 434 U.S. 1030 (1978). On remand

to the Court of Appeals, the requesters and the manu-

facturers both filed motions in January 1978 requesting

a briefing schedule (A.65-A.69). However, no action was

taken by the Court until September 20, 1978 when the

parties were requested to submit memoranda setting

forth their views as to the course the Court of Appeals

should take in light of the remand by this Court and

‘*to address with particularity the question whether

the permanent injunction entered in GTE Sylvania

v. Consumer Product Safety Commission, Civ. No.

75-104 (D. Del. Dec. 8, 1977), bars appellants [the re-

questers], who were not parties in that case, from liti-

gating in this case their claim that the materials at

issue should be disclosed” (A.70).

8 es eee Crs ee At

ee ee ee ee

13

On December 22, 1978 the Court of Appeals (Robin-

son, J. for a panel consisting of himself and Wright,

C.J. and Bazelon, J.) issued its second opinion and

judgment (A.1-A.24), again rejecting all of the manu-

facturers’ arguments and remanding the case to the

District Court for determination of whether the infor-

mation should be disclosed to the requesters (A.23-

A.24). The Court expressly adopted its prior position

and reasoning that the complaint presented a constitu-

tional ‘‘case’’ or ‘‘controversy’’ notwithstanding the

entry of the Delaware permanent injunction (A.10).° It

then concluded that neither principles of comity nor col-

lateral estoppel barred the prosecution of the re-

questers’ action as the requesters were not formal par-

ties to the Delaware proceedings (A.12-A.16). In reach-

ing this conclusion, the Court held that the CPSC could

never represent the interests of FOIA requesters in a

reverse-FOIA suit so as to preclude later litigation

over the same information (A.12-A.14). Nor, in the

Court of Appeals’ view, did the requesters’ purposeful

failure to intervene in the Delaware proceedings pre-

clude their collateral attack on the Delaware judgment,

because ‘‘[t]o decide otherwise would force [a re-

quester] to accept the choice of a forum possibly sym-

pathetic to the submitter and surely inconvenient or im-

possible for the requester’’ (A.22), and since ‘‘Congress

specified the sites proper for judicial consideration of

FOIA claims’’ (A.22-A.23), ‘‘to allow submitters to

‘The Court did not address but implicitly also rejected the

manufacturers’ argument, first raised by the government in its

initial brief in the Court of Appeals and later endorsed by the

Solicitor General, that the information at issue had not been ‘‘im-

properly withheld’’ by the CPSC within the meaning of Section

552(a) (4) (B) of the FOIA.

14

force FOIA litigation to oceur in other arenas would

free the tail to wag the dog” (A.23). Recognizing that

its holding set the District of Columbia Court on a colli-

sion course with the Delaware Court (A.16-A.17), the

Court of Appeals blamed the CPSC for failing to join

the requesters as parties to the Delaware proceedings

under Rule 19, Fed. R. Civ. P (A.18-A.19), and claimed

that the manufacturers could have avoided the prob-

lem by maintaining the Delaware suit as a ‘‘defendant

elass action against the Commission and all possible

requesters’”’ (A.17). Accordingly, the Court of Appeals

remanded the case to the District Court with instruc-

tions to “‘continue toward a decision on the merits’’

(A.23) and suggested that its District Court consider

enjoining the manufacturers from enforcing their Del-

aware judgment against the CPSC if the District Court

found that the failure to release the information was

indeed improper (A.24).

The judgment of the Court of Appeals thus repre-

sents no change in position from its prior judgment

which this Court summarily vacated on certiorari. As

in its prior decision, the Court of Appeals has found

a ‘‘ease’’ or ‘‘controversy” where none exists and has

ordered its District Court to proceed to the merits

notwithstanding the Delaware permanent injunction.

As we show below, this decision, if permitted to stand,

will lead to chaos in the judicial administration of

FOTA and reverse-FOIA actions, and therefore should

be reviewed and reversed by this Court.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals presents cru-

cial questions concerning the proper accommodation

of FOIA and ‘‘reverse-FOIA”’ actions, namely, the

SE LL! tk ed ake Si SIR ae

ee ee eee

15

existence of the constitutionally requisite ‘‘case’’ or

‘‘controversy’’ between the parties, the proper inter-

pretation of the FOIA where an agency has been en-

joined from releasing information sought, and the pre-

clusionary effect on nonparties of a final judgment

prohibiting a governmental agency from releasing in-

formation sought under the FOIA. These questions—

which are not presented by Chrysler Corp. v. Brown,

et al., No. 77-922 (argued Nov. 8, 1978), 47 U.S.L.W.

3330—are highly significant and in view of the grow-

ing volume of FOIA and reverse-FOIA litigation

throughout the country are virtually certain to recur.

They should be reviewed by this Court in order that

subordinate courts may have guidance for the prob-

lems which will increasingly confront them.

The decision of the Court of Appeals for the District

of Columbia Circuit in this case undermines the

‘ease’ or ‘‘controversy’’ requirement of Article III

of the Constitution by contriving a disagreement be-

tween the parties over the meaning of a crystal clear

injunction issued by a district court in another circuit.

The decision unnecessarily sets the District of Co-

lumbia Court on a collision course with the Delaware

District Court by holding (a) that a governmental

agency improperly withholds records within the mean-

ing of the FOIA even though the records are withheld

solely because a federal court has enjoined release of

the records in any manner, (b) that a judgment per-

manently enjoining release of information does not

bar FOIA requesters from maintaining a later action

in another court seeking release of the same informa-

tion where the FOIA requesters purposely chose not to

intervene in the first action, and (c) that a govern-

16

mental agency may never represent the interests of

FOLA requesters in a reverse-FOIA action so as to

bar later litigation by the requesters seeking release of

the same information. Indeed, by asserting that the

District of Columbia Court must proceed to the merits

of this case and by suggesting that the District of

Columbia Court consider enjoining the manufacturers

from enforcing their Delaware injunction against the

CPSC, the Court of Appeals has challenged the juris-

diction of the Delaware Court to enforce its final

judgment.

We believe that the decision of the Court of Appeals

raises issues of paramount importance concerning the

proper judicial administration of FOIA and reverse-

FOIA actions. The decision warrants review, if not

summary reversal, by this Court.

1. Under the terms of Article III of the Constitu-

tion, a court may act only in actual ‘‘cases”’ or ‘‘con-

troversies.’’ See Juidice v. Vail, 430 U.S. 327, 331

(1977) ; United Public Workers v. Mitchell, 330 U.S.

75, 89 (1947) ; Aetna Life Insurance Co. v. Haworth,

300 U.S. 227 (1937). There must be a ‘‘substantial

controversy, between parties having adverse legal in-

terests,’’ Maryland Casualty Co. v. Pacific Coal & Oil

Co., 312 U.S. 270, 273 (1941), so as to ‘‘assure that con-

erete adverseness which sharpens the presentation of

issues upon which the court so largely depends for

illumination of difficult . . . questions.’’ O’Shea v.

Littleton, 414 U.S. 488, 494 (1974), quoting Baker v.

Carr, 369 U.S. 186, 204 (1962). Accordingly, where

parties ‘‘desire precisely the same result . . . [t]here

is . . . no case or controversy within the meaning of

Art. III of the Constitution.’’ Moore v. Charlotte-

ae ee EE Ee ee ee ee =

17

Mecklenburg Board of Education, 402 U.S. 47, 48

(1971) (per curiam).

In its December 22, 1978 opinion, the Court of Ap-

peals expressly adopted (A.10) the holding and reason-

ing of its July 5, 1977 opinion that a justiciable ‘‘case’’

or ‘‘controversy’’ exists between the requesters and the

CPSC notwithstanding the fact that the CPSC wants to

release the information to the requesters and has made

a formal determination to do so (A.52-A.54). The

CPSC has always desired precisely the same result as

the requesters, and the only reason the information

was not released to the requesters is because the CPSC

has been prevented from doing so by the restraining

orders, preliminary injunction, and permanent injunc-

tion entered in the Delware litigation.’ Thus, on its

face, the decision of the Court of Appeals disregards

fundamental principles of justiciability.

In its July 5, 1977 opinion the Court of Appeals at-

tempted to circumvent the congruence of interest be-

tween the requesters and the CPSC in two ways,

neither of which can withstand scrutiny. The Court

first perceived a supposed disagreement between the

requesters and the CPSC defendants as to whether the

orders entered in the Delaware litigation ‘‘precluded’”’

or ‘‘absolved’’ the CPSC from providing the request-

ers with the information they sought (A.52). But

not one word in the requesters’ complaint or briefs

ever has questioned the meaning of any of the orders

entered in the Delaware litigation or their binding

. Indeed, as Judge Richey noted (A.39 n.14) in dismissing the

District of Columbia action, the CPSC made this very representa-

tion in the District of Columbia Court, stating in paragraph 13 of

its answer to the complaint that ‘‘disclosure will be made as soon

as the [CPSC] defendants are not enjoined from doing so.’’

18

effect on the CPSC. Certainly, there can now be no

disagreement as to whether the permanent injunction '

now in effect prevents the CPSC from releasing the

accident information to the requesters. Clearly it does.

The Court of Appeals also based its finding of a

‘‘ease’’ or “controversy” on its perception that the

CPSC’s conduct of the Delaware litigation was ‘‘not

easily reconcilable with its ostensible acceptance of

[the requesters’] argument that the requested docu-

ments should be disclosed” (A.53). While the Court

stated in its December 22, 1978 opinion that ‘‘we ear-

lier rejected one solution—dismissal for absence of a

case or controversy—and we adhere to that position

for the reasons then stated’ (A.10), it later referred

to ‘‘the temptation—to which we earlier suecumbed—

to undertake a critique of the agency’s litigative strat-

egy” (A.17). We assume that the latter statement im-

plicitly disassociates the Court from its earlier charges

against the CPSC. Moreover, it is clear that those

charges have no foundation in fact * and are inappro-

priate as a matter of law. As the Court of Appeals itself

7 Indeed, the December 22, 1978 remand order (A.23-A.24) itself

recognizes that there can be no ‘‘controversy’’ as to the effect of

the injunction. The remand order merely directs the District of

Columbia District Court to resolve the underlying merits of the

case before it, to determine whether the information should be

released to the requesters, and, in effect, to determine whether the

Delaware injunction should have been issued at all (A.23-A.24).

The order even suggests that the District of Columbia Court con-

sider enjoining the manufacturers from enforcing the Delaware

injunction against the CPSC in the event that the District of

Columbia Court decides that the information should be released

(A.24).

*The petitions for rehearing filed with the Court of Appeals

after its July 5, 1977 decision, particularly that of the CPSC,

19

recognized in its July 5, 1977 opinion (A.54 n.27), the

litigation strategy of a party, even if incorrect, is sim-

ply not a matter for consideration by an appellate

court. See Link v. Wabash R.R., 370 U.S. 626, 633-34

(1962). In any event, the desire of the CPSC to re-

lease the information to the requesters is itself suffi-

cient to establish that there is a lack of adverseness

between the parties.

show how totally unjustified the Court of Appeals was in its attack

on the CPSC’s handling of the Delaware litigation. Of particular

note is the Court of Appeals’ completely baseless challenge of the

CPSC’s motives in failing to oppose the temporary restraining

orders and its decision to withdraw its appeal from the preliminary

injunction. The need for TRO’s to prevent the whole matter from

becoming moot was so obvious that the entry of such orders by

the Delaware Court was certain, and therefore opposition plainly

would have been fruitless. Moreover, the CPSC felt it needed addi-

tional time fully to brief its position before any preliminary in-

junction hearing. The decision to withdraw the interlocutory appeal

was made by the Solicitor General, who concluded that the appeal

would clearly be futile. Nor is the failure of the CPSC to press for

prompt final hearing in the Delaware litigation any basis for chal-

lenging the bona fides of its expressed desire to release the informa-

tion. Rather, the decision not to press for entry of a final judgment

in Delaware stemmed from the CPSC’s hope that a favorable

decision would be reached in the case of Pierce & Stevens Chemical

Corp. v. Consumer Product Safety Commission, No. 75-410 (W.D.

N.Y.). In fact, the CPSC’s litigation strategy appears completely

justified because the Second Circuit reversed entry of a permanent

injunction against the CPSC and rendered an opinion favorable to

the CPSC ’s position in the Delaware litigation. Pierce & Stevens

Chemical Corp. v. Consumer Product Safety Commission, No. 78-

6135 (2d Cir. December 14, 1978). Earlier, the same Court had

affirmed by oral opinion, 578 F.2d 1869 (2d Cir. 1978), the issu-

ance of a preliminary injunction in Pierce & Stevens. 439 F. Supp.

247 (W.D.N.Y. 1977). ~

20

The Court of Appeals’ ‘‘case’’ or ‘‘controversy”’

holding sets a dangerous precedent for other courts

that, if allowed to stand, will result in a proliferation

of litigation. For example, the decision will allow a

person to circumvent a federal court’s injunctive order

against him by arranging for another interested per-

son to bring suit in a different federal court to have

the first person ordered to do what he actually desires

to do but cannot do without violating the injunction

issued in the first court. The decision will also enable

any individual who does not like a particular court’s

order in a litigation to try to bypass the order by

starting an action in another court he considers to be

more favorably disposed to his position.

2. By ordering the District of Columbia Court to

determine whether the accident information should be

disclosed, the Court of Appeals implicitly rejected the

manufacturers’ argument, supported by the Solicitor

General in his opposition (p. 5) to the manufacturers’

first petition for a writ of certiorari, that the request-

ers’ action could not be maintained because the infor-

mation at issue was not being ‘‘improperly withheld”

within the meaning of § 552(a)(4)(B) of the FOIA.

Under the FOIA, a district court only ‘‘has jurisdic-

tion ... to order the production of any agency records

improperly withheld’’ and ‘‘the burden [of proof] is

on the agency to sustain its actions’? in withholding

the records. 5 U.S.C. § 552(a) (4) (B) (1976).

The CPSC has never claimed that the documents at

issue in this litigation are exempt from disclosure pur-

suant to one of the exemptions to the FOIA. To the

contrary, the CPSC has refused to disclose the docu-

ments to the requesters only because a court of compe-

21

tent jurisdiction has enjoined the CPSC from disclos-

ing the documents to the public. The refusal of the

CPSC to disobey the Delaware injunction cannot, as

a matter of law, constitute improper withholding of

documents and, accordingly, the Court of Appeals

erred in holding to the contrary. The decision will lead

to an unnecessary proliferation of lawsuits and should

not be upheld.

3. The Court of Appeals concluded that because the

requesters were not formal parties to the Delaware

proceedings, the entry of the Delaware permanent in-

junction did not bar them from proceeding with their

District of Columbia action (A.20). In reaching this

conclusion, the Court of Appeals recognized (A.22 &

n.64) that it had decided an important question ex-

pressly reserved by this Court in Provident Trades-

mens Bank & Trust Co. v. Patterson, 390 U.S. 102, 114

(1968)—+.e., whether a person can “‘be bound by the

previous decision because, although technically a non-

party, he had purposely by-passed an adequate oppor-

tunity to intervene.’’ 390 U.S. at 114. The Court of Ap-

peals found that requesters would suffer ‘‘undue hard-

ship’’ if required to intervene in reverse-FOIA pro-

ceedings because of what it viewed as a clear Congres-

sional intention to limit ‘‘judicial consideration of

FOIA claims’’ to specified districts ° and its own per-

ception that ‘‘to allow submitters to force FOLIA litiga-

tion to occur in other arenas would free the tail to wag

°5 U.S.C. § 552(a)(4)(B) provides that an action to compel

release of agency records improperly withheld under the FOIA

may be brought in ‘‘the district in which the complainant resides,

or has his principal place of business, or in which the agency

records are situated, or in the District of Columbia.’’

22

the dog’’ (A.22-A.23). The Court further stated that

“‘[t]o decide otherwise would force [a requester] to

accept the choice of a forum possibly sympathetic to

the submitter and surely inconvenient or impossible

for the requester’’ (A.22).

The Court of Appeals’ concern that the forum

chosen by the reverse-FOIA plaintiff may be ‘‘sympa-

thetic to the submitter’’ is speculative. More signifi-

cantly, however, Congress has provided by statute a

choice of forum for plaintiffs in reverse-FOIA and

other litigation where the government is a party de-

fendant. Title 28 U.S.C. § 1391(e) (1976) gives a sub-

mitter of information a broad choice of venue, including

the right to bring suit in the ‘‘home court.” * Yet in its

desire to intrude into the Delaware proceedings, the

Court of Appeals completely ignored the significant

policy of this statutory provision.

The history of this litigation cries out for reversal

of the Court of Appeals’ decision. The requesters—

Prior to 1963, an action against an agency official normally

could only be brought in the District of Columbia—the precise

result sought now by the requesters. However, Congress amended

the general federal venue statute, 28 U.S.C. § 1391, by adding a

subsection (e) permitting a government official to be sued in any

judicial district in which (1) the official resides, or (2) the cause

of action arose, or (3) any real property involved in the action is

situated, or (4) the plaintiff resides if no real property is involved

in the action. See P.L. 87-748, 76 Stat. 744 (1962). The legislative

history of this landmark amendment shows that Congress was

concerned about broadening the plaintiff’s choice of venue in

actions against the government and viewed the then current state

of the law—which normally required that suit be brought in the

District of Columbia—to be ‘‘contrary to the sound and equitable

administration of justice.’’ S. Rep. No. 1992, 87th Cong., 2d Sess.

(1962).

23

two sophisticated and litigation oriented consumer

groups—had notice " of the Delaware litigation almost

from the time of its inception and made a deliberate

choice’ not to participate in that litigation and in-

stead to concentrate their efforts on revitalizing their

own FOIA action. It was not until after entry of the

permanent injunction and appeal to the Third Circuit

that the requesters, in a belated attempt to undermine

the Delaware proceedings, finally filed a brief as amici

curiae with the Third Cireuit urging that the perma-

nent injunction be vacated for failure to join the re-

questers as parties to the District Court proceedings

11 While the Court of Appeals acknowledged that ‘‘[p]reclusion

based on the failure to intervene would be proper, if at all, only

where the putative intervenor had timely notice of the litigation’’

(A.22 n.64), it proceeded to ignore the undisputed fact that the

requesters here had such notice.

That choice admittedly was made ‘‘for strategic reasons’’

(A.112 n.9) and not because of any undue hardship. In fact, no

claim of hardship could be substantiated here in light of the fact

that one of the requesters has sought to intervene in another

action pending in the District of Delaware. Pharmaceutical Mfrs.

Ass’n v. Food and Drug Administration, et al., C.A. No. 77-291

(D. Del.) (September 23, 1977 Motion for Leave to Intervene as

Defendants by Consumers Union of the United States, Inc., et al.).

Moreover, while the requesters originally argued before the Dis-

trict of Columbia District Court that the Delaware Court was a

‘*hopelessly inappropriate and inconvenient forum’’ (see Plain-

tiffs’ Memorandum of Points and Authorities in Support of Motion

for Summary Judgment and In Opposition to Defendants’ Motions

to Dismiss or In The Alternative for Stay of Proceeding at 45),

they later recanted on appeal and conceded that the inconvenience

of the Delaware forum ‘‘may be minimal.’’ See Brief of Plaintiffs-

Appellants at 18.

24

and that the case either be dismissed or transferred to

the District of Columbia."

This case thus squarely presents the question ex-

pressly reserved by this Court in Provident Trades-

mens Bank and is worthy of consideration by this

Court. If the Court of Appeals’ ruling is permitted to

stand, an individual with an interest in the outcome of

a litigation would be encouraged not to participate in

that litigation because he could always institute a later

'* Incidentally, in an attempt to ‘‘accommodat[e]’’ FOIA and

reverse-FOIA suits (A.16), the Court of Appeals for the Dis-

trict of Columbia opined that the CPSC should have urged the

Delaware Court to join the requesters as parties under Rule 19,

Fed. R. Civ. P., so as to avoid duplicative litigation (A.17-A.20).

Indeed, the Court of Appeals went so far as to state, by way of

dictum, that the requesters were indispensable parties under Rule

19(b) to the Delaware proceedings and that the failure to join the

requesters thus mandated dismissal of the Delaware actions (A.18-

A.19). We know of no reverse-FOTA case where the requester has

been joined as a party, much less where a court has held that a

requester must be joined under Rule 19. The consequences of the

Court of Appeals’ dictum could be profound. First, every reverse-

FOIA ease in which a judgment has been entered for the submit-

ter, without intervention of the requester, would be subject to

attack. Second, where two requesters reside in different districts,

the submitter would be denied a forum or, at the very least, would

be forced to bring two lawsuits in order to obtain personal juris-

diction over each requester.

The Court’s gratuitous comments concerning Rule 19 were made

without the benefit of full briefing or argument, and were without

legal foundation. See Cherokee Nation v. Hitchcock, 187 U.S. 294

(1902). Rather, the Rule 19 discussion appears to have been caleu-

lated to influence the decision of the Third Circuit, where the issue

has been fully briefed and argued. In any event, if, as we believe,

the requesters are ‘‘properly foreclosed by [their] failure to inter-

vene in the [Delaware] litigation, then the joinder issue considered

in the Court of Appeals vanishes, for any rights of [the requesters]

have been lost by [their] own inaction.’’ Provident Tradesmens

Bank v. Patterson, supra, 390 U.S. at 114.

25

suit of his own if the first suit were not resolved to

his satisfaction. Having deliberately failed to intervene

in the Delaware litigation, despite the absence of any

undue hardship in doing so, the requesters should not

be permitted to make a collateral attack on an injunc-

tion entered as a result of that litigation. To permit

the Court of Appeals’ decision to stand will render

meaningless the concept of final judgments in reverse-

FOIA litigation.

4. In finding that the Delaware permanent injunc-

tion does not bar the instant action, the Court of

Appeals also held that the CPSC may never represent

the interests of FOIA requesters in reverse-FOIA

actions so as to preclude a later collateral attack on a

judgment prohibiting disclosure of the information

sought (A.12-A.14). In so ruling, the Court of Appeals

brushed aside cases cited by the manufacturers hold-

ing that citizens may be bound by litigation where

their interests are represented by the government.”

Instead, the Court reached the startling conclusion

that a governmental agency favoring disclosure of in-

formation under the FOIA does not have a congru-

ence of interest with FOIA requesters to whom the

agency desires to release the information (A.12-A.13).

This holding is particularly egregious in the cir-

cumstances of this case. The CPSC is uniquely charged

with informing the public of consumer product safety

hazards, 15 U.S.C. § 2051 et seq. (1976), and has made

a conscious choice to maintain a pervasive ‘‘openness’’

“ See Southwest Airlines Co. v. Texas Int’l Airlines, 546 F.2d

84, 98, 101 (5th Cir.), cert. denied, 434 U.S. 832 (1977) ; see also

Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.),

cert. denied, 423 U.S. 908 (1975).

26

policy. The FOTIA requesters in this action were given

every opportunity to intervene in the Delaware pro-

ceedings,”® but instead chose to stand aloof from those

proceedings and to limit their participation to the

filing of a brief as amici curiae before the Third Cir-

cuit urging that the Delaware injunction be vacated

for failure to join them as parties. Despite an explicit

invitation from the manufacturers, the requesters re-

fused to intervene on appeal from the Delaware in-

junction and to file a brief on the merits. Rather, twelve

days after the FOIA requesters sought permission

from the Third Circuit to file their brief on the Rule

19 issue, another consumer group aligned with the in-

terests of the requesters, Consumer Federation of

America (‘‘CFA’’),* moved for leave to file a brief as

** Indeed, one court has held, based on its interpretation of

National Licorice Co. v. NLRB, 309 U.S. 350 (1940) and Consoli-

dated Edison Co. v. NLRB, 305 U.S. 197 (1938), that in awagency

antitrust proceeding seeking to vindicate public rights against a

private party, nonparties with an interest in the proceeding can

be bound by the results of that proceeding if they had notice and

an opportunity to intervene. Pepsico, Ine. v. FTC, 472 F.2d 179,

187-90 (2d Cir. 1972) (Friendly, J.), cert. denied, 414 U.S. 876

(1973). If, as in the Pepsico case, a private party can represent

the interests of nonparties in an agency antitrust proceeding, surely

the government agency also can adequately represent nonparties’

interests, so as to bind those nonparties, where the nonparties by-

passed an opportunity to intervene. Compare Parklane Hosiery

Co. v. Shore, —— U.S. ——, 99 S.Ct. 645, 651-52 (1979), where

this Court stated that a party’s failure to intervene in an earlier

proceeding may materially affect that party’s right to assert

offensive collateral estoppel in a subsequent proceeding.

* In its motion for leave to file a brief as amicus curiae with the

Third Circuit (A.145-A.147), CFA described itself as ‘‘the largest

consumer organization in the United States’’ ‘‘composed of over

225 national, state, and local consumer organizations’’ (A.145).

27

amicus curiae on the merits and was permitted to do

so without objection from the manufacturers. Thus,

even though the requesters believe that their interests

have not been fully represented by the CPSC, it can-

not be denied that their views on the merits of the Dela-

ware injunction will be fully and fairly litigated before

the Third Circuit through the combined efforts of the

CPSC and CFA.

The holding of the Court of Appeals clearly war-

rants review by this Court because, if the decision is

allowed to stand, a submitter of information to the

government will never be able to obtain final relief by

successfully prosecuting a reverse-FOIA action. In-

stead, a succession of future requesters could file suits

seeking to compel release of the same documents sub-

ject to the prior judgment, arguing that none of them

is bound by any prior judgment (whether entered in

a FOTA action or a reverse-FOIA action) because

none of them was a party to the action in which the

judgment was entered. Under these circumstances, no

one ever could impart sensitive information to a gov-

ernmental agency with any assurance that it would be

economically practicable to defend the confidentiality

of the information.”

‘The Court of Appeals claimed that the manufacturers could

have achieved finality in the Delaware proceedings by naming the

appellants-requesters as representatives of a defendant class con-

sisting of ‘‘all possible requesters’’ (A.17). This contention was

made without the benefit of any briefing or argument whatsoever

and, in any event, is erroneous. First, a ‘‘class’’ of ‘‘all possible re-

questers’’ would be comprised of over 200 million persons since

any person may at some unspecified future time request the docu-

ments at issue. It is clear that ‘‘the requirement that there be a

class will not be deemed satisfied unless the description of it is

sufficiently definite so that it is administratively feasible for the

28

5. In setting its own District Court on a collision

course with the Delaware Court, the Court of Appeals

ignored long-standing principles of comity that man-

date dismissal of this action, by (a) directing its own

District Court to proceed to redetermine issues already

decided by the Delaware Court (A.23-A.24) and (b)

suggesting to its District Court that it consider enjoin-

ing the manufacturers from enforcing their Delaware

injunction against the CPSC (A.24).*% As we have

court to determine whether a particular individual is a member.

This means that the class must not be defined so broadly that it

encompasses individuals who have little connection with the claim

being litigated... .’’ 7 Wright & Miller, Federal Practice and Pro-

cedure: Civil § 1760 at 581-82 (1972) ; see also Edwards v. Schles-

inger, 377 F. Supp. 1091 (D.D.C.), rev’d on other grounds sub

nom. Waldie v. Schlesinger, 509 F.2d 508 (D.C, Cir. 1974) (deny-

ing certification of a class of all ‘‘past, present and future’’ female

applicants to the U.S. Air Force Academy because it is ‘‘ill-de-

fined’’ especially as to ‘‘future’’ members); American Service-

men’s Union v. Mitchell, 54 F.R.D. 14 (D.D.C, 1972) (denying

certification of a class composed of ‘‘all American citizens who

have, do, or intend to advocate ideas, policies, and political posi-

tions which are unpopular, controversial, or who otherwise dissent

from the ideas, policies, and political positions predominant in

American society’’). Second, it is doubtful that the appellants-

requesters, much less a class, could be named as defendants, since

only the CPSC can provide the relief sought by the manufacturers.

Third, it would be impossible to give constructive ‘‘notice’’ to mem-

bers of the class, because of its immense size, if the court deemed

notice necessary to protect the absent members’ rights. See Rule

23(d), Fed. R. Civ. P. Moreover, joining a defendant class would

not ensure finality of the judgment, since it could be subject to

collateral attack by an absent member on the ground that the class

lacked adequate representation. See Gonzales v. Cassidy, 474 F.2d

67 (5th Cir. 1973).

*® While we acknowledge that in appropriate circumstances a

court first acquiring jurisdiction may enjoin a party before it from

proceeding to prosecute a later filed action, Kerotest Mfg. Co. v.

C-0-Two Fire Equipment Co., 342 U.S. 180 (1952), we have

29

shown, this deliberate disregard by the Court of Ap-

peals of the jurisdiction of the Delaware Court is totally

unnecessary and warrants reversal by this Court.

Neither the District of Columbia Court nor the Court

of Appeals for the District of Columbia Circuit has any

right or power to set aside the Delaware permanent

injunction.

The doctrine of comity rests upon considerations of

orderly judicial administration, including conserva-

tion of judicial resources and comprehensive dis-

position of litigation. Colorado River Water Conserva-

tion District v. United States, 424 U.S. 800, 817 (1976).

When two federal courts are faced with the prospect

of exercising concurrent jurisdiction over a contro-

versy, ‘‘the general principle is to avoid duplicative

litigation.’’ Id. See also Kerotest Manufacturing Co.

v. C-O-Two Fire Equipment Co., 342 U.S. 180 (1952).

Considerations of comity are especially important

where, as here, an injunction has been entered by the

first court considering the matter. Courts are particu-

larly wary of interfering with injunctive relief fash-

ioned by another court. F.g., Torquay Corp. v. Radio

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

cited with approval in Lapin v. Shulton, Inc., 333 F.2d

found no support for the Court of Appeals’ suggestion that

the second court acquiring jurisdiction (the District of Columbia

Court) can enjoin a party from enforcing a judgment obtained in

an earlier action. The only case cited by the Court of Appeals sup-

ports the former and not the latter proposition. See Steelman v.

All Continent Corp., 301 U.S. 278 (1937), where the first court

acquiring jurisdiction in a bankruptcy matter enjoined a party

before it from attempting to obtain a judgment in a later filed

action.

30

169 (9th Cir.), cert. denied, 379 U.S. 904 (1964) ; St.

Louis Amusement Co. v. Paramount Pictures, Inc., 61

F’. Supp. 854, 857 (E.D. Mo.), appeal dismissed, 326

U.S. 680 (1945), aff’d on other grounds, 168 F.2d 988

(8th Cir. 1948) ; see also Mann Manufacturing, Ine. v.

Hortex, Inc., 4389 F.2d 403 (5th Cir. 1971); Velsicol

Chemical Corp. v. Monsanto Co., 579 F.2d 1038, 1050

n.19 (7th Cir. 1978). Nor does the applicability of the

doctrine depend upon whether all of the parties to the

second suit were parties to the original action. £.y.,

United States v. Citizens National Trust & Savings

Bank, 166 F. Supp. 410, 412 (S.D. Cal. 1958), aff’d,

270 F.2d 128 (9th Cir. 1959) ; Torquay Corp. v. Radio

Corp. of America, supra.

These principles demonstrate that one federal dis-

trict court should not be permitted to interfere with an

injunction entered by another federal court. Yet, this

is precisely what the Court of Appeals decision con-

templates.” The fact that the plaintiff requesters in

this action were not parties to the Delaware litigation

is irrelevant since the CPSC was a party, is bound by

the Delaware Court’s injunction, and cannot disregard

it. If the plaintiff requesters wish to persist in their

efforts to obtain the documents, their remedy is to take

action in the Delaware Court to challenge or seek

® Indeed, the Solicitor General, in his opposition (p. 6) to the

manufacturers’ original petition for a writ of certiorari, stated

that in light of the Delaware permanent injunction, ‘‘ principles

of comity should in our view preclude the District of Columbia

court from proceeding with this litigation.’’ However, the Solicitor

General opposed review at that time because of his sanguine belief

that entry of the permanent injunction constituted a ‘‘change in

circumstances’’ which surely would be considered by the courts

below. Unfortunately, the Solicitor General’s views were in effect

rejected by the Court of Appeals.

31

modification of the injunction. Proceedings in the Dis-

trict of Columbia Court whose sole objective is a ruling

and order directly contrary to the Delaware Court’s

ruling and permanent injunction are totally unwar-

ranted and cannot be permitted by this Court.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Harry L. SHNIDERMAN

James M. McHaney, Jr.

Covincton & Bur ine

888 - 16th Street, N.W.

Washington, D.C. 20006

Attorneys for GTE Sylvania,

Incorporated, and Aeronutronic

Ford Corporation

Bernarp G. SEGAL Rosert W. STEELE

Cuartes C. Hiteman, IIT Avan M. Grima.p1

Drena Jo SCHNEIDER Howrey & Stmon

Scunaper, Harrison, 1730 Pennsyivania Avenue,

SreaL & Lewis N.W.

1719 Packard Building Washington, D.C. 20006

hj . >

Philadelphia, Pa. 19102 Attorneys for General

Attorneys for RCA Electric Company

Corporation

STEPHEN B. CLarKson Nancy L. Buc

Su.iivan, BEAUREGARD, Wet, GotsHat, & Mances

Cuiarkson, Moss, Brown 1101 Connecticut Avenue,

& JoHNSON N.W.

1800 M Street, N.W. Washington, D.C. 20036

Washington, D.C. 20036 Attorneys for Matsushita

Attorneys for The Magnavox Electric Corporation of

Company and Zenith America

Radto Corporation

Water T. KuHLMEY

Kirk anno & Eis

200 E. Randolph Drive

Chicago, Illinois 60601

Attorneys for Motorola, Inc.

WiuuiaM F. Parren

D. Cirrrorp Crook, IIT

Wivxes & Artis

1666 K Street, N.W.

Suite 608

Washington, D.C. 20006

Attorneys for Warwick

Electronics, Inc.

Burton Y. WrITZENFELD

MicHak. A, Streceu

ARNSTEIN, GLUCK,

WEITZENFELD & Minow

75th Floor, Sears Tower

Chicago, Illinois 60606

Attorneys for Warwick

Electronis, Inc.

February 12, 1979

Pretrer GARTLAND

J. Portis Hicks

Wenper, Murase & WHITE

400 Park Avenue

New York, New York 10022

Attorneys for Sharp

Electronic Corporation

Lawrence R. WALDERS

Tanaka, Wavtpers & RitcEr

1819 H Street, N.W.

Washington, D.C. 20006

Attorneys for Toshiba-

America, Inc.

J. Waxuace ADAIR

Howrey & Simon

1730 Pennsylvania Avenue,

N.W.

Washington, D.C. 20006

Attorneys for Admiral

Corporation