Appendix — GTE Sylvania, Inc. v. Consumers Union of United States, Inc.
Supreme Court brief1980
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— > U.
FIL
FEB 12 1979
IN THE
Supreme Court of the United States
OcToBER TERM, 1978 A ICHARL ROD, a RK
No @8-1248
GTE Syivania, INCORPORATED, RCA CorporaTION, THE
MAGNAVOX COMPANY, ZENITH Ravio Corporation,
Mororoia, Inc., Warwick ELecrronics, Inc., Apro-
NUTRONIC Forp Corporation, MaAtTsusHITA ELECTRIC
CORPORATION OF AMERICA, SHARP ELECTRONIC CORPORA-
TION, ‘TosHTBA-AMERICA, INC., GENERAL ELECTRIC
CoMPANY, ADMIRAL CORPORATION, Petitioners,
v.
CONSUMERS UNION OF THE UNITED StaTES, LNC., PUBLIC
CIT1zEN’s HeattTH RESEARCH GroUP, CONSUMER
Propuct Sarety CoMMISSION, RicHarD O. Simpson,
BARBARA H. FRANKLIN, LAWRENCE KUSHNER, CON-
STANCE NEWMAN, R. Davin Pirri.k, SADYE DuNN,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
Harry L. SHNIDERMAN
James M. McUlangy, Jr.
Covincron & Burne
S88 - 16th Street, N.W.
Washington, D.C. 20006
Tel: (202) 452-6196
Attorneys for GTE Sylvania,
Incorporated, and Aeronutronie
Ford Corporation
Bernarp G. SEGAL Rospert W. STEELE
Cuarues C. Hiteman, IT] ALAN M. GriMa.pi
Degna Jo SCHNEIDER llowrey & Simon
ScHNADER, Harrison, 1730 Pennsylvania Avenue,
Seca. & Lewis N.W.
1719 Packard Building Washington, D.C. 20006
Philadelphia, Pa. 19102 Attorneys for General
Attorneys for RCA - as iw Elegtric Company
Corporation
[Names of Other Counsel on Inside Cover |
STEPHEN B. CLARKSON
SULLIVAN, BEAUREGARD,
Cuarkson, Moss, Brown
& JOHNSON
1800 M Street, N.W.
Washington, D.C. 20036
Attorneys for The Magnavox
Company and Zenith
Radio Corporation
‘Water T. KusLMeEy
KieKLAND & Ex.as
200 E. Randolph Drive
Chicago, Illinois 60601
Attorneys for Motorola, Inc.
Wii F. Parren
D. Cirrrorp Crook, III]
Wrxes & Artis
1666 K Street, N.W.
Suite 608
Washington, D.C. 20006
Attorneys for Warwick
Electronics, Inc.
Burton Y. WeIrzENFELD
MicHaz. A. StrecE.
Arnstein, GLUCK,
Werrzenretp & Minow
75th Floor, Sears Tower
Chicago, Illinois 60606
Attorneys for Warwick
Electronics, Inc.
Nancy L. Buc
Wen, GorsHat, & Manors
1101 Connecticut Avenue,
N.W.
“Washington, D.C. 20036
Attorneys for Matsushita
Electric Corporation of
America
Perer GaRTLAND
J. Portis Hicks
Wenver, Murase & Waits
400 Park Avenue
New York, New York 10022
Attorneys for Sharp _
Electronic Corporation
LawRkENcE R. WaLDERS
Tanaka, Waupers & RitcER
1819 H Street, N.W.
Washington, D.C. 20006
Attorneys for Toshtba-
America, Inc.
J. Wattace Apar
Howrey & Simon
1730 Pennsylvania Avenue,
N.W.
Washington, D.C. 20006
Attorneys for Admiral
Corporation
TABLE OF CONTENTS OF APPENDIX.
Page
Second Opinion of the Court of Appeals .................. Al
GRE s ueh vd hdd Pawhuls abe whe kan Nive'sn4ascaaen A25
Opinion of the District of Columbia District Court ......... A32
Order of the Distric 6f Columbia District Court ........... A43
First Opinion of the Court of Appeals .................... A44
Order of the Court of Appeals Denying Rehearing ......... A60
Order of the Court of Appeals Denying Rehearing En Banc . A63
SORE GE I og ch canoe cb ehbisensécnecens A64
Manufacturers’ Motion to Set Briefing Schedule in the Court
Cee TO ere tity erry Ere rT ee A65
Requesters’ Motion to Set Briefing Schedule in the Court of
EE eT) Pert nr en Pee See ee meee A68
Order of the Court of Appeals Requesting Briefs .......... A70
Opinion of the Delaware District Court Granting Preliminary
RE eden cdueen sad bs Ue ba BRAG PANU RO Reeeee ts A71
Minute Order Entered by the Delaware District Court ..... A108
Opinion of the Delaware District Court Denying Motions to
TE eT RET TET EET Tee Tree ee A109
Opinion of the Delaware District Court Granting Permanent
Injunction ..... ck evs ne RSSG A ca seReheravaaant Al1l8
Judgment and Permanent Injunction Entered by the Delaware
RE EE bea secs eve ri evinssonncediavanekeeued A139
Requesters’ Motion for Leave To File Amicus Brief on Rule
OP Os Np hab Sa cecrgactresaveasavesy A142
Consumer Federation of America’s Motion for Leave To File
Amicus Brief on the Merits in the Third Circuit ....... A145
:
y
:
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Appendix.
SECOND OPINION OF THE COURT OF APPEALS.
UNITED STATES COURT OF APPEALS
For THE Districr or CoLtumsBiA CircuiT
No. 75-2059
CONSUMERS UNION OF THE UNITED STATES, INC.
et al.
v.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
Filed December 22, 1978
Before Wricut, Chief Judge, and BazELon, and Ros-
INSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge
ROBINSON.
Rosinson, Circuit Judge: At the core of this litiga-
tion’ is appellants’ challenge’ under the Freedom of
Information Act (FOIA)* to the Consumer Product
1. Our earlier decisions are cited infra notes 4 and 9.
2. Because of the grounds on which our previous decisions
rested, it was unnecessary to deal with the problems that are
squarely presented now.
3. Pub. L. No. 89-554, 80 Stat. 383 (1966), as amended,
5 U. S. C. §552(a)(3)-(e) (1976).
(Al)
A2 Second Opinion of the Court of Appeals
Safety Commission’s failure to disclose data concerning
accidents attributable to the operation of television sets.
When their cause was first before us, we reversed the
District Court’s ruling that no case or controversy was
presented.* That determination had been premised on
the Commission’s acknowledged willingness to release the
data save for a ban imposed thereon by a preliminary
injunction awarded television manufacturers by the Dis-
trict Court for the District of Delaware in a reverse-
FOIA suit involving the same information.’ We held
that the Delaware action, to which appellants were not
parties, was no obstacle to their effort in the District
Court here.’ We reasoned that a preliminary injunction
is designed merely to preserve the status quo ante pend-
ing final decision, and “‘is not an adjudication of rights
in any proper sense of the term. ...”* Because the
Delaware court had entered an order “closing out” the
case before any final stage had been reached, we con-
cluded that the Delaware proceeding was not “an in-
superable barrier to the suit at bar.” ®
We later were informed that the Delaware action had
not really been terminated, but that the “closing out”
order was apparently a means merely of placating the
periodic call for statistics reflecting judicial efficiency in
processing caseloads.’ In denying rehearing, we noted
that appellants had still not been added as parties to
the Delaware proceedings, and explained that “[s]ince all
4. Consumers Union v. Consumer Prod. Safety Comm'n, 182
U. S. App. D. C. 351, 561 F. 2d 349 (1977).
5. See id. at 356, 561 F. 2d 354.
6. Id. at 359, 561 F. 2d at 357.
7. Id. at 358, 561 F. 2d at 356, quoting United States Elec.
Lighting Co. v. Metropolitan Club, 6 App. D. C. 536, 544 (1895).
8. 182 U. S. App. D. C. at 358, 561 F. 2d at 356.
9. Consumers Union v. Consumer Prod. ~ Comm'n, 184
U. S. App. D. C. 146, 147, 565 F. 2d 721, 722 ( 977 .,
~s ————
Second Opinion of the Court of Appeals A3
necessary parties are before the District Court here, there
appears no reason why the litigation should not proceed
here, particularly since this is the venue authorized by
the FOIA.” ”
Our prior opinions spurred the manufacturers to re-
new vigorously their pursuit of a judgment on the merits
in Delaware, and appellants made no effort to have the
District Court here enjoin them from that course. And
the Commission, at long last, moved in the Delaware
court for a change of venue to the District of Columbia,
but added no alternative motion to join the FOIA re-
questers in the Delaware case—in which, we are now told,
their rights have been fully and finally adjudicated. The
Delaware court denied transfer primarily on the ground
that, though the Commission faced the possibility of in-
consistent outcomes on the merits, “[t]he time for the
Commission to have moved for a transfer of these cases
was in the early stages of this litigation in 1975 before
all the effort and work had been expended here.” ”
While a petition to the Supreme Court for a writ of
certiorari in this case was pending, the Delaware court
issued a permanent injunction.” The Supreme Court sub-
sequently granted certiorari and remanded the case to
us “for further consideration in light of the permanent
injunction.” * Thus we are now brought face-to-face with
the issue we had earlier reserved: Does a judgment in
10. Id.
1l. GTE Sylvania, Inc. v. Consumer Prod. Safety Comm'n,
438 F. Supp. 208, 212 (D. Del. 1977). The court noted that “the
Commission does not contend that the convenience of the parties
and witnesses requires a transfer of these actions to the District of
Columbia.” Id. at 211.
12. GTE tne Inc. v. Consumer Prod. Safety Comm’n,
(3d és ee 1152 (D. Del. 1977), appeal pending, No. 78-1328
ir.).
13. GTE Sylvania, Inc. v. Consumers Union, 434 U. S. 1030,
98 S. Ct. 761, 54 L. Ed. 2d 778 (1978).
a i kl
A4 Second Opinion of the Court of Appeals
favor of information-suppliers in a reverse-FOIA suit
bar requesters not parties thereto from litigating their
contention that the Freedom of Information Act man-
dates disclosure? ** The answer, we think, becomes clear
once one investigates the interrelationship of the Act and
reverse-FOIA suits in light of traditional principles gov-
verning preclusion of subsequent litigation.
I. THe RATIONALES FoR FOIA snp ReversE-FOIA Suits.
Before the Freedom of Information Act was adopted,
official dissemination of information was frequently
marked by caprice,’® and suits to obtain information or
14. See Consumers Union v. Consumer Prod. Safety Comm'n,
supra note 4, 182 U. S. App. D. C. at 359, 561 F. 2d at 357. After
the remand, we called upon the so og for, and they submitted,
supplemental memoranda setting forth their views as to the course
the court should take, addressing particularly the question stated
in text.
15. Section 3(c) of the original Administrative Procedure Act,
Pub. L. No. 7 , 60 Stat. 238 A yond which the Freedom of
Information Act replaced, provided that “[s]ave as otherwise re-
quired by statute, matters of official record shall in accordance
with published rule be made available to persons properly and
directly concerned except information held confidential for good
cause found.” This section was perceived as “not intended to
open up Government files for general inspection,” Attorney Gen-
eral’s Manual on Administrative Procedure Act 25 (1947), and
agency responses to requests for information often evidenced an
appreciation of secrecy for secrecy’s sake. See S. Rep. No. 813,
89th Cong., 2d Sess. 3-5 (1965); H. R. Rep. No. 1497, 89th Cong.,
2d Sess. hye ; EPA v. Mink, 410 U. S. 73, 79, 93 S. Ct. 827,
832, 35 L. Ed. 2d 119, 127-128 (1973); Getman v. NLRB, 146
U. S. App. D. C. 209, 217-218, 450 F. 2d 670, 678-679, stay denied,
404 U. S. 1204. 92 S. Ct. 7, 30 L. E. 2d 8 (1971); Note, Comments
on Proposed Amendments to Section 3 of the Administrative Pro-
cedure Act: The Freedom of Information Bill, 40 Notre Dame Law.
417, 435-437 (1965). The breadth of agency discretion under
§3(c) was in no “yee 7 the courts, see, e.g., FCC v.
Schreiber, 381 U. S. 279, 293, 85 S. Ct. 1459, 1469, 14 L. Ed. 2d
383, 393 (1965); cf. Appeal of SEC, 226 F. 2d 501, 517-519 (6th
Cir. 1955); but cf. Gr Mfg. Co. v. Dixon, 223 F. Supp. 1020
(D. D. C. 1963), and that section had little practical effect on
rior law. Cf. United States ex rel. Stowell v. Deming, 57 App.
. C. 223, 224, 19 F. 2d 697, 698, cert. denied, 275 U. S. 531, 48
S. Ct. 28, 72 L. Ed. 419 (1927).
Second Opinion of the Court of Appeals A5
to forestall its release met with “far from uniform” ** judi-
cial treatment.’ The Act was intended to rationalize
agency disclosure policies ‘* by providing a mechanism for
balancing the public's “right to know” against the agency’s
interest in preserving confidentiality.” If a court finds
that the Act applies to material for which a request has
been properly made,” that is the end of the matter; the
(9 58) 1 K. Davis, Administrative Law Treatise §3.13, at 227
17. See cases cited supra note 15. See also the many cases
dealing with the propriety of agency disclosure sua sponte or in
the course of agency proceedings. E.g., FCC vw. Schreiber, supra
note 15; Utah Fuel Co. v. National Bituminous Coal Comm'n, 306
U. S. 56, 59 S. Ct. 409, 83 L. Ed. 483 (1939); Norwegian Nitrogen
Prods. Co. v. United States, 288 U. S. 294, 53 S. Ct. 350, 77 L. Ed.
796 (1933); FCC v. Menzies, 145 F. Supp. 164 (D. Md. 1956),
affd on other grounds, 241 F. 2d 81 (4th Cir.), cert. denied,
. S. 957, 77 S. Ct. 863, 1 L. Ed. 2d 908 (1957). See generally
Appeal of SEC, supra note 15, 226 F. 2d at 517-519 and cases
there cited; J. Chamberlain, N. Dowling & P. Hays, The Judicial
Function in Administrative Agencies 112-120 (1942); 1 K. Davis,
Administrative Law Treatise § 3.13 (1958 & 1970 Supp.); Rourke,
Law Enforcement Through Publicity, 24 U. Chi. L. Rev. 225, 242-
247 (1957).
18. See, e.g., S. Rep. No. 813 supra note 15, at 3:
It is the purpose of the —_— bill . . . to establish a general
policy of full agency disclosure unless information is exempted.
. . . It is essential that agency personnel, and the courts as
well, be given definitive guidelines in setting informational
policies.
19. Id. See also EPA v. Mink, supra note 15, 410 U. S. at
79-80, 93 S. Ct. at 832, 35 L. Ed. 2d at 127-128.
20. When no “request for identifiable records” has been made,
the statute is not activated. 5 U. S. C. §552(a)(3) (1976); see
S. Rep. No. 813, supra note 15, at 2; cf., e.g., Nader v. Volpe, 151
U. S. App. D. C. 90, 93 n. 26, 466 F. 2d 261, 264 n. 26, 18 A. L. R.
Fed. 595 (1972); FTC wv. Cinderella Career & Finishing Schools,
Inc., 131 U. S. App. D. C. 331, 341 n. 15 (1968) (concurring
opinion). See also Westinghouse Elec. Corp. v. United States
uclear Regulat Comm'n, 555 F. 2d 82, 93-94 (3d Cir. 1977).
But see Pennzoil Co. v. FPC, 534 F. 2d 627, 630 (5th Cir. 19703;
Continental Oil Co. v. FPC, 519 F. 2d 31, 36 (5th Cir. 1975), cert.
denied, 425 U. S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 794 (1976);
Union Oil Co. v. FPC, 542 F. 2d 1036, 1045 (9th Cir. 1976).
— 2 +
A6 Second Opinion of the Court of Appeals
material must be disclosed,”! for the Act effectuates a
congressional judgment that in those circumstances no
public or private interest in secrecy outweighs the bene-
fits attending public access.” Moreover, in determining
whether the Act is operative, the legislative command
that disclosure be the rule and exemptions be narrowly
construed ** must be sedulously observed. But Congress
in the same breadth specified classes of information to
which the Act—and its policy of openness—“do[] not
apply.” ** When a court finds that requested material
21. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 147-148,
95 S. Ct. 1504, 1515, 44 L. Ed. 2d 29, 45-46 (1975).
22. S. Rep. No. 813, supra note 15, at 5-6; see, ane Getman v.
NLRB, supra note 15, 146 U. S. App. D. C. at 217-219, 450 F. 2d
at 678-680; Soucie v. David, 145 U. S. App. D. C. 144, 154, 448
F. 2d 1067, 1077 (1971). See also Department of the Air Force v.
Rose, 425 U. S. 352, 379 n. 17, 96 S. Ct. 1592, 1607 n. 17, 48 L. Ed
2d 11, 31 n. 17 (1976). See generally K. Davis, Administrative
Law of the Seventies § 3A.6, at 61 (1976).
23. See Department of the Air Force v. Rose, supra note 22,
425 U. S. at 361, 96 S. Ct. at 1599-1600, 48 L. Ed. 2d at 21, og |
EPA v. Mink, supra note 15, 410 U. S. at 79, 93 S. Ct. at 832,
L. Ed. 2d at 127-128; Vaughn v. Rosen, 157 U. S. App. D. C. 340,
343, 484 F. 2d 820, 823 (1973), cert. denied, 415 U. S. 977, 94
S. Ct. 1564, 39 L. Ed. 2d 873 (1974), affd after remand, 173 U. S.
App. D. C. 187, 193, 523 F. 2d 1136, 1142, 28 A. L. R. Fed. 623
(1975); Soucie v. David, supra note 22, 145 U. S. App. D. C. at
157, 448 F. 2d at 1080.
24. 5 U. S. C. §552(b) (1976); S. Rep. No. 813, supra note
15, at 3; see, eg. Administrator v. Robertson, 422 U. S. 255, 261,
95 S. Ct. 2140, 2145, 45 L. Ed. 2d 164, 170 (1975); NLRB v. Sears,
Roebuck & Co., supra note 21, 421 U. S. at 137, 95 S. Ct. at 1510,
44 L. Ed. 2d at 39; EPA v. Mink, supra note 15, 410 U. S. at 74,
93 S. Ct. at 830, 35 L. Ed. 2d at 125. Since the Act is “not a
withholding statute. but a disclosure statute,” S. Rep. No. 813,
supra note 15, at 5; see S. ey ° No. 584, 93d i 2d Sess. 6
te H. R. Rep. No. 1419, 92d Cong., 2d Sess. 7 (1972), the
mere fact that information falls within one of its exemptions does
not of itself outlaw disclosure. See Planning Research Corp. v.
FPC, 181 U. S. App. D. C. 33, 36-37 n. 4, F. 2d 970, 973-974
n. 4 (1977), ap Rep. No. 584, supra, at 6 and Charles River
Park “A”, Inc. v. HUD, 171 U. S. App. D. C. 286, 293, 519 F. 2d
935, 942 (1974) and K. Davis, Administrative Law of the Seventies
§ 3A.5, at 58-61 (1976) and K. Davis, Administrative Law Treatise
Second Opinion of the Court of Appeals A7
falls :*to one of these categories, and resultantly that its
divulgence is not compelled by the Act, the propriety of
voluntary disclosure by the agency must hinge on recon-
ciliation with such other law as is pertinent—whether
statute, regulation, the administrative “cunyron- law” or
general principles of equity.”
Some of these residual legal rules may endow private
parties with legally cognizable interests in the confiden-
tiality of exempted information; others may bestow on
some a greater entitlement to information than the Act
itself gives the general public.” Since the agency’s pur-
24. (Cont'd. )
§3A.5, at 122 (1970 Supp.); Chrysler Corp. v. Schlesinger, 565
F. 2d 1172, 1185 (3d Cir. 1977), cert. rented, 435 U. S 914, 98
S. Ct. 1466, 55 L. Ed. 2d 504 (1978); Superior Oil Co. v. FERC,
563 F. 2d 191, 204 (5th Cir. 1977); Clement, The Rights of Sub-
mitters to Prevent Agency Disclosure of Confidential Bustiinee In-
formation: The Reverse Freedom of Information Lawsuit, 55 Texas
L. Rev. 587, 598-600 (1977 )s cf. Drachsler, The Freedom of Infor-
mation Act and the “Right” of Non-Disclosure, 28 Ad. L. Rev. 1,
5-6 (1976); Project, Government Information and the Rights of
Citizens, 73 Mich. L. Rev. 971, 1158-1159 (1975); Comment, Re-
verse Freedom of Information Act Suits: Confidential Information
in Search of Protection, 70 Nw. L. Rev. 995, 1010-1011 (1976).
See also Associated Dry Goods Corp. v. EEOC, 419 F. Supp. 814,
821 (E. D. Va. 1976). But cf. Westinghouse Elec. Core. v.
Schlesinger, 542 F. 2d 1190, 1197 (4th Cir. 1976), cert. denied,
431 U. S. 924, 97 S. Ct. 2199, 53 L. Ed. 2d 239 (1977); McCoy v.
Weinberger, 386 F. Supp. 504, 508 (W. D. Ky. 1974).
25. See, e.g., Planning Research Corp. v. FPC, supra note 24,
181 U. S. App. D. C. at 36-37 n. 5, F. 2d at 973-974 n. 5,
Ca: K. Davis, Administrative Law Treatise §3A.5, at 122
1970 Supp.); Charles River Park “A”, Inc. v. HUD, supra note 24,
171 U. S. App. D. C. at 140-141, 519 F. 2d at 941-942; Chrysler
Corp. v. Schlesinger, supra note 24, 565 F. 2d at 1192; Westing-
house Elec. Corp. v. Schlesinger, supra note 24, 542 F. 2d at 1197-
1198; GSA v. Benson, 415 F. 2d 878, 880 (9th Cir. 1969). But cf.
Babcock & Wilcox Co. v. Rumsfeld, 70 F. R. D. 595, 601 (N. Hf
Ohio 1976).
m6. Compare, e.g., United States v. Nixon, 418 U. S. 683, 94
S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) with EPA v. Mink, supra
eae | 410 U. S. at 86-88, 93 S. Ct. at 835-836, 35 L. Ed. 2d. at
A8 Second Opinion of the Court of Appeals
poses will only coincidentally correspond with those of
nongovernmental parties, it would be folly to entrust
these often-critical private interests*” to unreviewable
bureaucratic discretion. This court has accordingly held
that when an agency asserts its intention to comply with
a demand for information, parties who would be ag-
grieved by compliance may sue for a declaration whether
that release would be lawful.** But such litigants must
27. At least one reverse-FOIA action has been brought by
individuals seeking to prevent disclosure to business concerns of
confidential information about them. Sonderegger v. United States
Dep't of Interior, 424 F. Supp. 847 (D. Idaho 1976) (request of
claim files on each victim in Teton Dam disaster). Many other
FOIA cases, mostly turning on the scope of 5 U. S. C. § 552(b) (6)
ce indicate that requesters may desire information about
ttle le.” E.g., Department of the Air Force v. Rose, supra
note U. S. at 373-376, 96 S. Ct. at 1606-1607, 48 L. Ed. 2d
at 28-30 (Air Force Academy disciplinary records); Rural Housing
Alliance v. United States Dep't 0 alors, 162 U. S. App. D. C.
122, 126, 498 F. 2d 73, 77 (197 i “information regarding marital
status, legitimacy of children, identity of fathers . . . , medical
condition, welfare payments, alcoholic a family fights,
and so on”). Ackerly v. Ley, 137 U. S. App. D. C. 133, 136, 420
F. 2d 1336, 1339 (1967) (medical records); Wine Hobby U. S. A.,
Inc. v. Internal Revenue Serv., 502 F. 2d 133, 136-137 (3d Cir.
1974) (names, addresses, aun status, and personal activities
within the home); Disabled Officer's Ass'n v. Rumsfeld, 428 F.
Supp 454 (D. D. C. 1977), affd, No. 77-1504 (D. C. Cir. Apr. 18,
1977) (names and addresses of former military officers who retired
with a disability); Columbia rhe. Co., Inc. v. United States
pn of Agriculture, 417 F. Supp. 651, 654 (D. Mass. 1976), affd,
F. 2d 495 (1st Cir. 1977) (“a detailed synopsis of each indi-
vidual’s career within the [government], data about family rela-
tionships, financial information and medical records”); cf. Ditlow
v. Schultz, 170 U. S. A PP. D. C. 352, 517 F. 2d 166 (1975). Surely
these individuals hal not be without recourse to judicial review
of agency action so deeply affecting their privacy. See generally,
Hulett, Ken} and the Freedom of Information Act, 27 Ad. L.
ie at sell Project, supra note 24, 73 Mich. L. Rev. at 1161-
28. Charles River Park “A”, Inc. v. HUD, me note 24, 171
U. S. App. D. C. at 141, 519 F. 2d at 942; see Planning Research
Corp. v. FPC, supra note 24, 181 U. S. App. D. C. at 40-41, 555
F. 2d at 977-978. See also Sears, Roebuck & Co. v. GSA, 180 U. S.
App. D. C. 202, 204-205, 553 F. 2d 1378, 1380-1381 (1977).
2 a LOI RO a. a
ee
Second Opinion of the Court of Appeals A9
first pass through the needle’s eye of the Freedom of
Information Act,” for if the Act calls for disclosure they
have, of course, no right whatsoever to confidentiality.*
Only if the Act does not govern need the court examine
other sources of law—which may prohibit dissemination,
give the agency judicially reviewable or unreviewable dis-
cretion to release or retain, or even mandate disclosure,
depending on the circumstances.*'
Reverse-FOIA suits therefore are no blight upon the
landscape of the law, but the propriety of their role in any
scenario must be carefully considered. Enforcement of
such rights of confidentiality as federal law might other-
wise recognize must not be allowed to choke the free flow
of data contemplated by Congress in the Freedom of In-
formation Act. Surely such an obstruction would be inter-
posed if a judgment adverse to the agency in a reverse-
FOIA action were permitted to bar later FOIA suits for
the documents in question when no one interested in ob-
taining the material was a party to the earlier litigation.
In our view, no such preemption is warranted, as this case
tellingly exemplifies.
Il. THEORIES FOR PRECLUSION OF SUBSEQUENT
FOIA Surirs
Federal courts in different jurisdictions may some-
times reach conflicting conclusions on the duties of an ad-
29. Sears, Roebuck & Co. v. GSA, supra note 28, 180 U. S.
App. D. C. at 205, 553 F. 2d at 1381, citing Charles River Park
“A’, Inc. v. HUD, supra note 24, 171 U. S. App. D. C. at 291-292
n. 4, 294 n. 10, 519 F. 2d at 940 n. 4, 941 n. 10 and Westinghouse
Elec. Corp. v. Schlesinger, supra note 24, 542 F. 2d at 1208 n. 57.
30. See note 22 supra.
31. See cases cited supra note 23; GSA v. Benson, supra note
25, 415 F. 2d at 880, (alternative holding that agency is bound by
regulation specifying that even if requested material is exempt, it
should be released absent a compelling reason for nondisclosure); cf.
S. Rep. No. 584, supra note 24, at 6; H. R. Rep. No. 1419, supra
note 24, at 7 (approving regulations similar to those invoked in
Benson); Drachsler, supra note 24, 28 Ad. L. Rev. at 2, 9-11.
Al0 Second Opinion of the Court of Appeals
ministrative agency, but normally without placing it in
an impossible dilemma or bringing on a direct clash of
judicial power. A serious conundrum, however, arises
when, as here, the subject matter is information and the
dispute is over whether it should be disclosed to the public.
Once released pursuant to judicial decree, the data cannot
be bottled up within the court’s geographical area; with
modern communications, information made public at any
one point may soon be available throughout the country,
often within moments. By the same token, when a court
orders an agency to retain information, its edict is ab-
solutely useless unless it stops agency action everywhere.
Consequently, the first court to decide—in either a FOIA
or a reverse-FOIA suit—will have pronounced a judgment
that might reach across the Nation, or, on the other hand,
might not have any practical effect even in its own juris-
dictional domain.
That is exactly the situation here. The Delaware pro-
ceeding began, and the Commission was temporarily en-
joined, before the appellant-requesters filed their own
action in the District of Columbia seeking disclosure. By
the time appellants sued, the District Court here knew that
should the litigation before it continue, a decision contrary
to that of the Delaware court might be reached, and that
the Commission could not possibly comply with each of
the conflicting orders.
Thus focused, the issue is the proper response of the
court chronologically second. We earlier rejected one
solution—dismissal for absence of a case or controversy—
and we adhere to that position® for the reasons then
stated. That still leaves other alternatives—dismissal
32. See Consumers Union of the United States, Inc. v. Con-
sumer Prod. Safety Comm'n, supra note 4, 182 U. S. App. D. C.
at 356-357, 561 F. 2d at 354-355.
33. In the Supreme Court, the Commission stated, contrary to
its argument here, that it had become “persuaded . . . that a case
Ti a ib i Eh Tipit ACD a ar i PD i PN ED OR
> eee
Second Opinion of the Court of Appeals All
on a theory of stare decisis, collateral estoppel or comity,
or continuation of the suit in some manner. For more
than ample reason, we have chosen the latter course.
A. Stare Decisis.
We surely do not gainsay that “the doctrine of stare
decisis is still a powerful force in our jurisprudence.” ™
So, a court resolving a FOIA claim may choose to defer
to a previous judicial decision that the Act does or does
not apply to particular documents,” whether the prior
action sought disclosure or restraint. It has not, however,
been our experience that federal judges are either careless
or timorous. The notion that any would defer on stare
decisis grounds to a decision by a co-ordinate court with
which he disagreed is unworthy of comment.”
33. (Cont'd. )
or controversy, within the meaning of Article III, exists between
the requesters and the Commission.” Brief for Federal Respondents
in Opposition to Petition for a Writ of Certiorari, at 5, GTE
Sylvania, Inc. v. Consumers Union, supra note 13.
34. United States v. Maine, 420 U. S. 515, 527, 95 S. Ct. 1155,
1161, 43 L. Ed. 2d 363, 371 (1975).
35. See generally, Vestal, Relitigation by Federal Agencies:
Conflict, Concurrence and Synthesis of Judicial Policies, 55 N. C.
L. Rev. 123 (1977). But cf. Robertson v. Department of Defense,
402 F. Supp. 1342, 1346-1347 (D. D. C. 1975).
36. See City Stores Co. v. Lerner Shops of District of
Columbia, Inc., 133 U. S. App. D. C. 311, 315, 410 F. 2d 1010, 1014
Song (“[dJecisions of district courts and other courts of appeal
are, of course, not binding on us and are looked to only for their
persuasive effect”; “[i]f they fail to persuade by the use of sound
and logical reasoning, they will not be followed, no matter how
great their number”); Watson v. Allen, 103 U. S. App. D. C. 5, 10,
254 F. 2d 342, 347 (1958), later appeal, 107 U. S. App. D. C. 25,
274 F. 2d 87 (1959), (decisions of other courts of appeals “are
rsuasive and entitled to deference but are not authoritatively
inding”). See generally, Vestal, supra note 35, 55 N. C. L. Rev.
at 130-136. But see Comment, Securing Uniformity in National
Law: A Proposal for National Stare Decisis in the Courts of Ap-
peals, 85 Yale L. J. 1219 (1978).
ae
eek
<
Al2 Second Opinion of the Court of Appeals
B. Collateral Estoppel.
Furthermore, the doctrine of collateral estoppel, which
does bind parties to a previous suit to such determinations
of material issues as are encompassed in the judgment,”
only rarely precludes nonparties from litigating the same
issues afresh.** If the FOIA applicant has neither been a
party nor otherwise represented in a prior successful
reverse-FOIJA suit, he will not be blocked from taking his
controversy to the courts.*°
The only parties here who were litigants in Delaware
are the Consumer Product Safety Commission and the
manufacturers who sought to prevent disclosure of ma-
terials that the Commission was prepared to turn over to
appellants. An agency’s interests in FOIA suits of either
37. See, e.g., Nixon v. Richey, 168 U. S. App. D. C. 172, 180
n, 75, 513 F. 2d 430, 438 n. 75 (1975), and cases cited therein;
Wolfe v. Froehlke, 358 F. Supp. 1318, 1319 (D. D. C. 1973), affd,
166 U. S. > C. 274, 510 F. 2d 654 (1974). See generally,
tis 64)" n/Res Judicata Variables: Parties, 50 Iowa L. Rev.
38. See, e.g., Sea-Land Servs., Inc. v. Gaudet, 414 U. S. 573.
593-595, 94 S. Ci. 806, 819, 39 L. Ed. 2d 9, 25-26 (1974), citing.
inter alia, Blonder-T Laboratories, Inc. v. University of Il.
Foundation, 402 U. S. 313, 320-327, 91 S. Ct. 1434, 1439-1442, 98
L. Ed. 2d 788, 795-799 (1971); Vestal, supra note 37, 50 Iowa L.
Rev. at 63-64; Developments in the Law—Res Judicata, 65 Harv.
L. Rev. 818, 855-856 (1952). See also Hansberry v. Lee, 311 U. S.
32, 40, 61 S. Ct. 115, 117, 85 L. Ed. 22, 26 (1940. .. We are cogni-
zant of isolated decisions of lower federal courts advancing bold
new rules for preclusion of nonparties, which have been hailed b
commentators as.a sign of things to come. See generally McCoid,
A Single Package for Multiparty Disputes, 28 Stan. L. Rev. 707
1976); Vestal, Res Judicata/Preclusion: Expansion, 47 S. Calif. L.
ev. 357 (1974); Vestal, Claim Preclusion and Parties in Privity:
Sea-Land Services v. Gaudet in Perspective, 60 Iowa L. Rev. 973
(1975). We take no view on these jp at a ea for they do not
apply to the situation under discussion here, in which by no means
appellants have a “vicarious day in court.” Note, Collateral
Estoppel of Non-parties, 87 Harv. L. Rev. 1485, 1500 (1974).
= Bn See ai v. Froehlke, supra note 37, 358 F. Supp. at 1319;
ree sige epartment of Defense, supra note 35, F, Supp.
Second Opinion of the Court of Appeals A13
stripe diverge markedly from private interests,“’ and raise
serious doubt whether the agency could ever be deemed to
represent members of the public. Indeed, congressional
appreciation of that divergence underlies the Act. The
institutional predilections that distinguish the agency's
position from the citizens argue against permitting the
Commission to do via litigation what it may not do by
agreement ‘'—to bar applicants from information to which
the Act mandates access. Far less do they justify de-
parture from the rule, articulated in the milieu of antitrust
enforcement, that “just as the Government is not bound
by . . . litigation to which it is a stranger, so private
parties, similarly situated, are not bound by government
litigation.” “
40. As an institutional matter, the agency's policy goals will
best be served if it is completely free to expend or conserve the
power of its knowledge. See, e.g., Rourke, supra note 17, 24 U.
Chi. L. Rev. 231-233. One commentator has noted that “[i]t may
be bad for appearances in a period of ‘openness’ and ‘honesty’ for
an agency to refuse disclosure. . . .” O'Reilly, Government Dis-
closure of Private Secrets Under the Freedom of Information Act,
30 Bus. Law., 1125, 1134 (1975); accord, Note, Protection from
Government Disclosure—The Reverse FOIA Suit, 1976 Duke L. J.
330, 359 (1976), cf. Comment, supra note 24, 70 Nw. U. L. Rev. at
998-999. On the other hand, self-interest may often move the
agency to keep secret information that, if revealed, would embarrass
it or frustrate its regulatory objectives. See S. Rep. No. 813, supra
note 15, at 3; H. R. Rep. No. 1497, supra note 15, at 5-6.
41. Petkas v. Staats, 163 U. S. App. D. C. 327, 329, 501 F. 2d
887, 889 (1974).
42. Sam Fox Publishing Co. v. United States, 366 U. S. 683,
690, 81 S. Ct. 1309, 1313, 6 L. Ed. 2d 604, 610 (1961); see Battle
v. Liberty Nat'l Life Ins. Co., 493 F. 2d 39, 52 (5th Cir. 1974),
cert. denied, 419 U. S. 110, 95 S. Ct. 784, 42 L. Ed. 2d 807 (1975);
Robertson v. Department of Defense, supra note 35, 402 F. Supp.
at 1346-1347; cf. City a o v. General Motors Corp., 332 F.
Supp. 285 (W. D. Ill. 1971), affd, 467 F. 2d 1262 (1972). But 7
Proctor & Gamble Co. v. Byers Transp. Co., Inc., 355 F. Supp. 547,
558 n. 18 (W. D. Mo. 1973).
We have no quarrel with the proposition that in appropriate
circumstances the Government may represent private parties in a
judicial proceeding and that that suffices to bar those represented
Al4 Second Opinion of the Court of Appeals
Nor can the agency’s role in reverse-FOIA litigation
be likened to that of the named representative of a class
in a defendant class action, and thus raise the spectre that
a judgment against the agency would extend to bind all
putative members of the hypothetical class it supposedly
represents. At the outset, the clash of purposes would
render the bureaucracy suspect as a representative of any
class composed of FOIA requesters.** Even passing that,
when—as in the present circumstances—no class has been
convened, no preclusive effect can possibly follow, and the
public's right to know remains secure.
C. Comity.
That brings us lastly to comity, here reflected in the
principle that “[o]rdinarily, the court first acquiring
jurisdiction of a controversy should be allowed to proceed
42. (Cont'd. )
from collaterally attacking the resulting judgment. See Southwest
Airlines Co. v. Texas Int'l Airlines, 546 F. 2d 84, 91-101 (5th Cir.),
cert. denied, 434 U. S. 832, 98 S. Ct. 117, 54 L. Ed. 2d 93 (1977);
Restatement (Second), of Judgments, § 85, comment d at 61-62
(Tent. Draft No. 2, 1975). But to accept a governmental agency
as an adequate iy oman eit of requesting parties whenever the
agency nominally favors disclosure is to ignore the stark fact that
their interests are not congruent: The agency is concerned with
conserving the time and energy of its personnel, and with avoiding
establishment of a precedent that in the future might support man-
divulgence of information it would prefer to k confi-
— the requesters simply want the information. See note
supra.
43. To view the Commission as litigant of the requesters’ rights
in their stead “is to.attribute to [it] a power that it cannot be said
that [it] has assumed to exercise, and a yy ge which, in
view of [its] interests[,] it does not appear that [it] could rightly
e.” Hansberry v. Lee, supra note 38, 311 U. S. at 46, 61
S. Ct. at 120, 85 L. Ed. at 29. “Such a selection of representatives
for of litigation, whose substantial interests are not neces-
waclly or even probably the same as those whom they are deemed
to represent, does not afford that protection to absent parties which
a process requires.” Id. at 45, 61 S. Ct. at 119-120, 85 L. Ed.
at 29.
—s
Second Opinion of the Court of Appeals Al5
with it without interference from other courts under suits
subsequently instituted.”** Though we have not the
smallest quarrel with that time-honored dogma, it should
not he permitted to hold sway outside situations in which
it was designed to apply. Created to assure judicial effi-
ciency and to reflect abiding respect for other courts,** the
doctrine surely does not contemplate that fundamental
rights of citizens will be adjudicated in forums from which
they are absent.
In fact, though perhaps subconsciously at times, the
courts have not allowed comity to be debased in such a
fashion. The decisions invoking the principle involve
circumstances in which the plaintiff in the later federal suit
was a party to the earlier action involving the same issues
and subject matter.“® When everyone with an interest
44. Carbide & Carbon Chem. Corp. v. United States Indus.
Chem. Co., 140 F. 2d 47, 49 (4th Cir. 1944).
45. See Colorado River Water Conservation Dist. v. United
States, 424 U. S. 800, 817, 96 S. Ct. 1236, 1246, 47 L. Ed. 2d 483,
498 (1976); Columbia Plaza Corp. v. Security Nat'l Bank, 173 U. S.
App. D. C. 403, 409, 525 F. 2d 620, 626 (1975).
46. E.g., Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342
U. S. 180, 181, 72 S. Ct. 249, 220, 96 L. Ed. 200, 202 (1952) (parties
to subsequent suit were both involved in first action); Columbia
Plaza Corp. v. Security Nat'l Bank, 173 U. S. App. D. C. 403, 411,
525 F. 2d 620, 628 (1975) (all parties to subsequent suit were in-
volved in first action); Hilton Hotels Corp. v. Weaver, 117 U. S.
App. D. C. 83, 325 F. 2d 1010 (1963), cert. denied, 376 U. S. 951,
84 S. Ct. 968, 11 L. Ed 2d veh oma (same plaintiff in both suits;
substantially the same parties altogether); Food Fair Stores, Inc. v.
Square Deal Market Co., 88 U. S. App. D. C. 176, 177, 187 F. 2d
219, 220 (1951) (same parties and issues); Semmes Motors, Inc. v.
Ford Motor Co., 429 F. 2d 1197, 1202-1203 (2d Cir. 1970) (same
parties and issues); Cresta Blanca Wine Co. v. Eastern Wine Corp.,
143 F. 2d 1012, 1014 (2d Cir. 1944) (second suit by defendant in
prior proceeding against plaintiffs in that first action must be en-
joined, but suit on same issue and subject matter against corpora-
tion that was not party to first suit must be allowed to continue);
Carbide & Carbon Chem. Corp. v. United States Indus. Chem. Co.,
supra note 44, 140 F. 2d at 49 (same , ye in both wee Mann
Mfg., Inc. v. Hortex, Inc., 439 F. 2d 403, 405 (5th Cir. 1971) (de-
Al6 Second Opinion of the Court of Appeals
could have had his claim resolved in one court, it would
be senseless to allow some of the parties to initiate con-
current litigation over the same dispute. But that is not
this case. Some—at least appellants—with a stake in the
controversy were not before the Delaware court, and ac-
cordingly the principle of comity is inapplicable.*7 Even
if comity might be thought at all relevant, it would not
outweigh the non-parties’ right, guaranteed by the Act “*
and the Constitution,** to have their claims adjudicated.
III. AccomMopaTinG FOIA anp REveErsE-FOIA Sutrts.
The sum of the foregoing is that none of the familiar
anti-relitigation doctrines operates to deprive nonparty
requesters of their right to sue for enforcement of the
Freedom of Information Act; rather, they remain un-
affected by prior litigation solely between the submitters
and the involved agency. One obvious consequence is that
federal agencies that are prey to reverse-FOIA suits may
46. (Cont’d.)
fendants in first suit brought subsequent action); Martin v. Graybar
Elec. Co., 266 F. 2d 202, 204 (7th Cir. 1959) (both suits involved
the same parties and issues ); American Chem. Paint Co. v. Thomp-
son Chem. Corp., 244 F. 2d 64, 65-66 ve Cir. co 1 Loner lain-
tiffs in all suits); O'Hare Internat’l Bank v. Lambert, F. 24 328,
330 (10th Cir. 1972) (identical actions a by same party).
See also, e.g., Will v. Calvert Fire Ins. Co., — U. S. —, —, 98 S. Ct.
2552, 2555, 57 L. Ed. 2d 504, 508 (1978) (same parties and issue
in state and federal court suits); Co. River Water Conserva-
tion Dist. v. United States, supra note 45, 424 U. S. at 806, 96 S. Ct.
at 1240-1241, 47 L. Ed. 2d at 491 (same); Brillhart v. Excess Ins.
Co., 316 U. S. 491, 494-495, 62 S. Ct. 1173, 1175-1176, 86 L. Ed.
1620, 1625 (1942) (same); Rickey Land & Cattle Co. v. Miller &
Lux, 218 U. S. 258, 263, 31 S. Ct. 11, 13-14, 54 L. Ed. 1032, 1038-
1039 (1910) (plaintiff in subsequent state suit was a corporation
utilized merely as a device by defendant in first federal suit ).
47. Robertson v. Department of Defense, supra note 35, 402
F, Supp. at 1346, citing Great N. Ry. Co. v. National R. R. Adjust-
ment Bd., 422 F. 2d 1187, 1193 (7th Cir. 1970).
48. See 5 U.S. C. § 552(a)(4)(B) (1976).
49. See text infra at notes 60-61.
ee
Second Opinion of the Court of Appeals Al7
by that token find themselves subject to the possibility
of inconsistent judgments. Threats of that nature are not
unprecedented, however, and there are procedural de-
vices aplenty designed to avoid the hazard of conflicting
obligations.’ Resort to them in the present context, more-
over, would have brought about representation of all in-
terests before the court that first addressed the merits, and
thereby would have eliminated the problem completely.
Another consequence is that reverse-FOIA plaintiffs
may find that, to prevent judgments in their favor from
becoming nugatory, they must join in their lawsuits
anyone whose request for information quickened the sub-
mitter’s controversy with the agency “"—or perhaps even,
by way of a defendant class action, all those who likely
may subsequently make such requests. That, too, can
only be salutary, for it will assure that the public's in-
terest will be represented by at least one of its own.
It will also relieve courts of the temptation—to which
we earlier succumbed—to undertake a critique of the
agency’s litigative strategy.”
The manufacturer-plaintiffs could have named appel-
lant-requesters as defendants in the Delaware lawsuit, or
they could have maintained it as a defendant class action
against the Commission and all possible requesters.”
. Co. v. Usery, 426 F. Supp.
150, 155 ‘D. Bic.) (transfer and consolidation of FOIA acd
reverse-FOIA suits); Fisher v. Renegotiation Bd., 355 F. Supp. 1171
(D. D. C. 1973) (reverse-FOIA advocate permitted to intervene as
of right in FOIA suit). See also text infra at notes 53-56.
51. Joining the requester may constrain the reverse-FOIA
plaintiiP. citine of vena See 28 U. S.C. A. §$1391(e) (1977
Supp.). See also 5 U. S. C. § 552(a)(4)(B) (1976), discussed in
notes 66 and 71 infra.
52. See Consumers Union v. Consumer Prod. —_ Comm'n,
supra note 4, 182 U. S. App. D. C. at 356-357, 561 F. 2d at 354-355.
53. See United States v. Trucking Employers, Inc., 75 F. R. D.
682, 686-687 (D. D. C. 1977); Fed. R. Civ. P. 23(a) (“[o]ne or
more members of a class may sue or be sued as representative
:
:
:
Al18 Second Opinion of the Court of Appeals
They did not. The Commission, with some creativity,
could have filed an interpleader counterclaim and joined
the requesters on the theory that otherwise the Com-
mission might be exposed to multiple accountability and
that, in a dispute over disclosure, information is an in-
divisible res over which the parties contest."* It did not.
At the very least, the Commission could have urged that
the requesters were parties whose joinder was required
under Civil Rule 19.° But no consideration was given
to the mandates of that rule,®* though, as we now eluci-
date, its applicability could hardly have been questioned.
If, as the manufacturers and the Commission assert,
the Delaware reverse-FOIA suit so affected appellants’
interest in disclosure of the information sought that they
are now barred from litigating it in the District Court
here, the Delaware action certainly could have been said,
in the words of Rule 19, “as a practical matter [to]
impede [their] ability to protect that interest or .. .
[to] leave [the agency] subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent ob-
ligations by reason of [appellants’] claimed interest.” ™
53. (Cont'd. )
we ~ it contal a
Peroni Wolfson, % cl Class stions, 38 Ohio Pal J. re
(grr) Note, Defendant Class Actions, 91 Harv. L. Rev. 630
54. See Fed. R. Civ. P. 22; Advisory Committee’s Note to Fed.
R. Civ. P. 19, reprinted in 39 F. R. D. 89, 92 (1968); cf. Gauss v.
Kirk, 91 U. S. App. D. C. 80, 83, 198 F. 2d 83, 86 (1952).
55. Fed. R. Civ. P. 19.
56. Indeed, though any court may—and should, if ified—
examine the issue of Rule 19 sua Prose the sp Pg a on
to consent to the filing of the requesters’ amicus brief raising the
rag Nc ral appeal to a Nig the po of the Delaware court’s
note 12 supra. e Thi ircuit
any pra ircuit granted leave to file
57. Fed. R. Civ. P. 19(a). The possible difficulty that reverse-
FOIA plaintiffs might not know the identities of all resent or
future requesters can be ameliorated ne own re-
questers as representatives of a defendant note 53 supra.
Second Opinion of the Court of Appeals = A19
Indeed, the concept of joinder was created to resolve the
problem of conflicting exercise of equity jurisdiction.”
Rule 19(b) states the considerations that must guide a
determination whether one described by Rule 19(a) must
be regarded as so indispensable that the litigation must
be dismissed. Those factors include
first, to what extent a judgment rendered in the
person’s absence might be prejudicial to him or
those already parties; second, the extent to which,
' by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice
can be lessened or avoided; third, whether a judg-
ment rendered in the person’s absence will be ade-
quate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for non-
joinder.
In our view, those factors, had anyone in the Delaware
action paused to look at them, surely demanded dismissal
of the manufacturers’ Delaware suit, or at least an in-
junction shaped to impact to the smallest possible extent
upon the absent requesters’ interest.
Joinder of the requesters would have been the better
course, for it would have avoided the duplicative litiga-
tion in which we now are unfortunately entangled, but
it was not the only solution. A well-crafted judgment in
Delaware could have steered clear of any embarrassment
to appellants’ claim. Indeed, the inherent tension between
58. See Provident Tradesmens Bank & Trust Co. v. Patterson,
390 U. S. 102, 120, 88 S. Ct. 733, 743-744, 19 L. Ed. 2d 936, 950-951
(1968). Rule 19 also helps “to make SE yg certain that no
injustice is done, either to the parties before it, or to others who
are interested in the subject matter, by a decree which might other-
wise be granted upon a partial view only of the real merits.”
Minnesota v. Northern Sec. Co., 184 U. S. 199, 235, 22 S. Ct. 308,
322, 46 L. Ed. 499, 516 (1902).
A20 Second Opinion of the Court of Appeals
reverse-FOIA and FOIA suits could often be mitigated
by a rule that, unless the party resisting disclosure joins
in his reverse-FOIA suit those seeking release, any in-
junction therein must be drafted to halt only voluntary
disclosure by the agency, and to leave unaffected the re-
questers’ right to seek a subsequent judicial determina-
tion that the Act mandates disclosure.”
IV. CONCLUSION.
Appe'lant requesters were not made parties to the
Delaware action, and the effect of that omission on this
litigation is, to us, indisputable. A judgment cannot bind
those who were not before the court either in person or
through some sort of representative.” As the Supreme
Court has declared, in dealing with situations where “a
final decision cannot be made between the parties litigant
without directly affecting and prejudicing the rights of
others not made parties . . . , no Court can adjudicate
directly upon a person’s right, without the party being
59. See Provident Tradesmens Bank & Trust Co. v. Patterson,
supra note 58, 390 U. S. at 112 n. 10, 88 S. Ct. at 739, n. 10, 19
L. Ed. 2d at 946 n. 10 (the pertinent questions are “[c]an the
decree be written so as to protect the legitimate interests of out-
siders and, if so, would such a decree be adequate to the plaintiff's
needs and an efficient use of judicial machinery”). We need not
reach the question whether by similar reasoning requesters must
always join submitters as defendants in their FOIA suits, for appel-
lants here have done so in their complaint.
60. Hansberry v. Lee, supra note 38, 311 U. S. at 40-41, 45, 61
S. Ct. at 117-118, 119-120, 85 L. Ed. at 26-27, 29; see Provident
Tradesmens Bank & Trust Co. v. Patterson, supra note 58, 390 U. S.
at 110, 88 S. Ct. at 738, 19 L. Ed. 2d at 945 (“[o]f course, since the
outsider is not before the court, he cannot be bound by the judg-
ment rendered”); Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co.,
raat: S. at 186, 72 S. Ct. at 222, 96 L. Ed. at 204
where
the patentee’s suit against a customer is brought in a district
the manufacturer cannot be joined as a defendant, the manu-
facturer may be permitted simultaneously to prosecute a declara-
tory action against the patentee elsewhere” ).
Second Opinion of the Court of Appeals A21
either actually or constructively before the Court.” ”
This basic tenet of due process can hardly be circumvented
through the ritualistic invocation of “comity.” The manu-
facturers have no valid objection to relitigation of dis-
closure of this information, “for clearly the plaintiff [in
the earlier suit], who himself chose the forum and the
parties defendant, will not be heard to complain about
the sufficiency of the relief obtain[ed] against them.” ”
Nor can the Commission legitimately bemoan the threat
of inconsistent obligations since it never attempted to
foreclose that possibility by seeking the joinder of appel-
lants in Delaware.”
61. Mallow v. Hinde, 25 U. S. (12 Wheat.) 193, 198, 6 L. Ed.
599, 600 (1827), quoted with approval in Provident Tradesmens
Bank & Trust Co. v. Patterson, supra note 58, 390 U. S. at 122, 88
S. Ct. at 744, 19 L. Ed. 2d at 952. See also Western Union Tel. Co.
v. Pennsylvania, 368 U. S. 71, 74-75, 82 S. Ct. 199, 201, 7 L. Ed. 2d
139, 142-143 (1961) (forced relinquishment of property interest
without assurance that holder will not be held liable again to an-
other in another court violates due process, “and, of course, New
York’s claims could not be cut off where New York was not heard
as a party”).
62. Provident Tradesmens Bank & Trust Co. v. Patterson,
supra note 58, 390 U. S. at 111, 88 S. Ct. at 739, 19 L. Ed. 2d at
946; see Boles v. Greenville Housing Auth., 468 F. 2d 476, 479 (6th
Cir. 1972) (“[a]ny hardship suffered . . . is attributable to their
own failure to bring [an interested person] into the case as a
party”). It is no answer to say that a plaintiff normally is allowed
to choose how to write his complaint:
The plaintiff has the right to “control” his own litigation and to
choose his own forum, This “right” is, however, like all other
rights, “defined” by the rights of others. Thus the defendant
has the right to be safe from needless multiple litigation and
from rb avoidable inconsistent obligations. Likewise
the interests of the outsider who cannot be joined must be con-
sidered. Finally there is the public interest and the irterest
the court has in seeing that insofar as possible the litigation
will be both effective and expeditious.
Schutten v. Shell Oil Co., 421 F. 2d 869, 873 (5th Cir. 1970).
63. See Provident Tradesmens Bank & Trust Co. v. Patterson,
supra note 58, 390 U. S. at 110, 88 S. Ct. at 738, 19 L. Ed. 2d at
945 (“[a]fter trial, however, if the defendant has failed to assert
A22 Second Opinion of the Court of Appeals
The only factor even remotely capable of preventing
appellants from prosecuting their FOIA suit toward a
result contrary to the broad Delaware reverse-FOIA in-
junction is their failure to intervene in the proceeding
there.* We believe, however, that appellants, and per-
haps information-requesters generally, should not suffer
from bypasses of this sort. To decide otherwise would
force them to accept the choice of a forum possibly sym-
pathetic to the submitter and surely inconvenient or im-
possible for the requester.” Congress specified the sites
63. (Cont'd. )
this interest [against inconsistent relief], it is quite proper to con-
sider it foreclosed”). Had the Commission raised the issue in a
timely fashion, the Delaware court expectably would either have
ordered joinder, modified the relief ultimately granted or dismissed
the action. The Supreme Court has instructed that if “[a]mong the
unpleasant possibilities entailed by proceeding [is] the likelihood
that the defendant might find itself subject to directly conflicting
injunctive orders . . . ‘the court must refuse to exercise jurisdiction
. . . or become the instrument of injustice.” Id. at 123, 88 S. Ct.
at 745, 19 L. Ed. 2d at 952, quoting Northern Ind. R. R. Co. v.
Michigan Cent. R. R. Co., 56 U. S. (15 How.) 233, 246, 14 L. Ed.
674, 681 (1854).
64. See Provident Tradesmens Bank & Trust Co. v. Patterson,
supra note 58, 390 U. S. at 114, 88 S. Ct. at 740, 19 L. Ed. 2d at
947-948 (reversing this a. Compare Developments in the
Law—Multiparty Litigation in Federal Courts, 71 Harv. L. Rev.
874, 882-883 (1958) with id. at 884-885. Preclusion based on the
failure to intervene would be proper, if at all, only where the
putative intervenor had timely notice of the litigation.
65. For example, in Westinghouse Elec. Corp. v. Schlesinger,
— note 24, one requesting party was the al Aid Society of
eda County, California, but the reverse-FOIA suit was liti-
cy in Virginia, where the requester felt it necessary to intervene.
e inconvenience of cross-country intervention is magnified by the
familiar rule that “an intervenor generally is held to have waived
his privilege to change the venue of a suit." Commonwealth Edison
Co. v. Train, 71 F. R. D. 391, 394 (N. D. Ill. 1976), citing TWA v.
C 64 (2d Cir. 1964), cert. denied, 382 U. S. 842,
AB, 339 F. 2d 56.
86 S. Ct. 40, 15 L. Ed. 2d 82 (1965) and 3B, Moore’s Federal Prac-
tice § 24.19 (2d ed. 1975).
eee at She ae A OR Ee OE Se a et ek
Second Opinion of the Court of Appeals A23
proper for judicial consideration of FOIA claims; to
allow submitters to force FOIA litigation ® to occur in
other arenas would free the tail to wag the dog.”
This, in our opinion, is the type of “undue hardship” ex-
pressly discountenanced by the Advisory Committee when
it discussed amended Rule 19 in 1966. The rule puts the
burden on existing parties and the court to bring in those
whose presence is necessary or desirable, and to work out
a fair solution when joinder is jurisdictionally impossible.”
A generally applicable theory of waiver by one who de-
clines to voluntarily step into the proceeding would abro-
gate the rule and its purpose completely. It is the party’s
—not the nonparty’s—responsibility to make certain that
the court has before it all those needed to enable it to serve
the ends of justice. And if the essential nonparty cannot,
for reasons of personal jurisdiction, be joined in the suit,
then the litigation must proceed elsewhere, if at all.”
This case, therefore, must finally continue toward a
decision on the merits in the District Court for the District
66. The Freedom of Information Act specifies “the district
court of the United States in the district in which the complainant
[requester] resides, or has his principal place of business, or in
which the agency records are situated, or in the District of
Columbia” as the courts in which enforcement of the Act can
properly be sought. 5 U. S. C. § 552(a)(4)(B) (1976).
67. As noted earlier, notes 29-30 supra and accompanying text,
a court analyzing the merits of reverse-FO" 4 litigation must surely
determine he applicability of the disclos: re demands of the Act.
68. Cf. State Farm Fire & Cas. Co. v. Tashire, 386 U. S. 523,
535, 87 S. Ct. 1199, 1206, 18 L. Ed 2d 270, 278 (1967).
69. Advisory Committee’s Note to Fed. R. Civ. P. 19, reprinted
in 39 F. R. D. 89, 92 (1966).
70. See Ricci v. State Bd. of Law Examiners, 569 F. 2d 782,
784 (3d Cir. 1978); Fed. R. Civ. P. 19(a).
71. Congress specified that the applicability of the Freedom of
Information Act be litigated in the requester’s district or in other
designated areas, but made no provision at all for venue in the
submitter’s “home court.” See note 66 supra.
A2QA4 Second Opinion of the Court of Appeals
of Columbia. Its first task is to analyze closely the Dela-
ware court’s reasoning, for it may turn out that the court
here will agree with the Delaware court. Should, however,
the court decide that the failure to release the information
was indeed improper, it will have to ascertain the relief
appropriate in the circumstances. Since the manufacturers
are party-defendants, it might consider enjoining them
from enforcing their Delaware judgment against the Com-
mission.” In short, our decision is a narrow one—that this
litigation is not prohibited by the earlier action—and we
have not attempted to decide whether or not actual dis-
closure should be the final result.
Remanded.
72. Compare Steelman v. All Continent Corp., 301 **. S. 278,
291, 57 S. Ct. 705, 710-711, 81 L. Ed. 1085, 1093 (1937) with Lapin
v. Shulton, Inc., 333 F. 2d 169, 172 (9th Cir.), cert. denied, 379
U. S. 904, 85 S. Ct. 193, 13 L. Ed. 2d 77 (1964).
Complaint A25
IN THE
UNITED STATES DISTRICT COURT
For THE Districr OF COLUMBIA
Civil Action No. 75-705
CONSUMERS UNION OF UNITED STATES, INC.,
PUBLIC CITIZEN’S HEALTH RESEARCH GROUP,
Plaintiffs,
v.
CONSUMER PRODUCT SAFETY COMMISSION,
RICHARD O. SIMPSON,
BARBARA H. FRANKLIN,
LAWRENCE KUSHNER,
CONSTANCE NEWMAN,
R. DAVID PITTLE,
SADYE DUNN,
GTE SYLVANIA, INC.,
RCA CORPORATION,
THE MAGNAVOX COMPANY,
ZENITH RADIO CORPORATION,
MOTOROLA, INC.,
WARWICK ELECTRONICS, INC.,
AERONUTRONIC FORD CORPORATION,
MATSUSHITA ELECTRIC CORPORATION
OF AMERICA,
SHARP ELECTRONIC CORPORATION,
TOSHIBA OF AMERICA, INC.,
GENERAL ELECTRIC COMPANY,
ADMIRAL CORPORATION.
~ eee aera ae
~
A26 Complaint
COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF.
1. This is an action under the Freedom of Informa-
tion Act, as amended, 5 U. S. C. § 552 (“the Act”), by con-
sumer organizations seeking an opportunity to inspect and/
or copy documents in the possession of the Consumer
Product Safety Commission concerning television-related
accidents.
2. This Court has jurisdiction over the subject matter
of this Complaint pursuant to 5 U. S. C. §552(a)(3);
5 U. S. C. § 702; and 28 U. S. C. § 2201-02. Venue is
properly laid in this district pursuant to the Act, 5 U. S. C.
§ 552(a)(3).
3. Plaintiff Consumers Union of United States, Inc.
(“Consumers Union”), with several hundred thousand
members, many of whom are owners or prospective owners
of televisions which are or may be hazardous, is the largest
consumer organization in the United States. It was or-
ganized in 1936 as a nonprofit organization under the laws
of the State of New York to provide information, educa-
tion and counsel on consumer goods and services. Con-
sumers Union publishes Consumer Reports, a monthly
magazine of consumer information with a paid circulation
of more than 2 million readers. Consumers Union tests
and rates consumer products, including televisions, and
gathers other information relating to the performance, in-
cluding safety performance, of these products. Consumer
Reports regularly carries, and plans to carry in the future,
articles reflecting such testing and rating of televisions.
Plaintiff Public Citizen is a nonprofit organization sup-
ported by voluntary donations from individuals, many of
whom are owners or potential owners of television sets
_which are or may be hazardous. Public Citizen funds
Ai Set OE. So
a
Cnt teat atc iale hit iat ile Da aE MOOV as Ae Ta eta
one oman:
een ew —
Complaint A27
the Health Research Group which conducts research and
publishes information for consumers relating to potential .
hazards to health and safety from consumer products.
4. Defendant Consumer Product Safety Commission
(“the Commission”) is an independent regulatory com-
mission established pursuant to the Consumer Product
Safety Act of 1972, 15 U.S. C. § 2051 et seq.
Defendant Richard O. Simpson is Chairman of the
Commission.
Defendants Barbara Franklin, Lawrence Kushner,
Constance Newman, and R. David Pittle are Commission-
ers of the Commission.
Defendant Sadye Dunn is the Secretary of the Com-
mission and the official designated by the Interim Free-
dom of Information Guidelines of the Commission to bear
ultimate responsibility for responding to requests for rec-
ords. (39 Fed. Reg. 30299, August 21, 1974).
Defendants GTE Sylvania, Inc., RCA Corporation,
The Magnavox Company, Zenith Radio Corporation,
Motorola, Inc., Warwick Electronics, Inc., Aeronutronic
Ford Corporation, Matsushita Electric Corporation of
America, Sharp Electronics Corporation, Toshiba of
America, Inc., General Electric Company, and Admiral
Corporation are each corporations which manufacture tele-
vision equipment and do business in the District of Co-
lumbia. Said defendants are hereinafter referred to col-
lectively as “defendant corporations.”
5. By separate letters dated June 14, 1974, plaintiffs
each requested from defendant Commission under au-
thority of the Act, an opportunity to inspect and/or copy
documents relating to the safety of television sets, which
documents were submitted by defendant corporations to
the Commission in response to the Commission’s Special
Orders (“Special Orders”) dated May 13, 1974.
A28 Complaint
In oral conversations, plaintiffs, defendant Dunn and
other representatives of the defendant Commission agreed
to extend the request to documents submitted by defend-
ant corporations in response to Commission subpoenas di-
rected to the defendant corporations and dated July 26,
1974.
6. Subsequently, plaintiffs limited their request to in-
clude only (a) the aforesaid submitted documents con-
cerning television-related accidents and (b) documents
resulting from Commission processing of such submitted
documents, but excluding (1) legal correspondence which
is within the attorney-client relationship or the attorney
work product doctrine, and (2) the names and addresses
of accident victims. Documents embraced within this
limited request are hereinafter referred to as “the re-
quested documents.”
7. On November 5, 1974, following various efforts
by plaintiffs to obtain Commission action on their requests,
plaintiffs, defendant Dunn and other employees of the
Commission met to discuss the status of plaintiffs’ request,
at which meeting plaintiffs protested defendant Commis-
sion’s refusal, based upon blanket claims of confidentiality
asserted by the defendant corporations, to disclose the
requested documents. Commission representatives re-
sponded that a legal determination as to the availability of
the requested documents for which claims of confiden-
tiality had been. advanced would be completed by mid-
March 1975. By letter dated November 18, 1974, plain-
tiffs acquiesced to this timetable, but expressly reserved
the right to consider additional delay as constituting a
denial of their request.
8. On March 28, 1975, defendant Commission deter-
mined, inter alia, that the requested documents do not con-
stitute exempt information under the Act, 5 U. S. C.
Complaint A29
§ 552(b), and that even if the data could be considered
exempt, disclosure is appropriate in the interest of public
health and safety.
9. By letter dated April 8, 1975, defendant Commis-
sion notified defendant corporations of the Commission’s
decision to release the requested documents. By telegram
of April 17, 1975 (and correction of April 21, 1975), the
Commission notified defendant corporations that no re-
quested documents would be released until May 1, 1975.
10. By filing separate actions on or after April 22,
1975, in the United States District Court for the District of
Delaware, defendants GTE Sylvania, Inc. (Civil Action
75-104), RCA Corporation (Civil Action 75-108), The
Magnavox Company (Civil Action 75-112), Zenith Radio
Corporation (Civil Action 75-113), Motorola, Inc. (Civil
Action 75-114), Warwick Electronics, Inc. (Civil Action
75-115), and Aeronutronic Ford Corporation (Civil Ac-
tion 75-116) have sought injunctions against disclosure,
Inter alia, of the requested documents.
By filing separate actions on or after Apri| 22, 1975,
in the United States District Court for the Southern Dis-
trict of New York, defendants Matsushita Electric Corpo-
ration of America (Civil Action 75-2040), Sharp Elec-
tronic Corporation (Civil Action 75-2049), and Toshiba
of America, Inc. (Civil Action 75-2050) have sought in-
junctions against disclosures, inter alia, of the requested
documents.
Defendant General Electric Company filed suit (Civil
Action 75-CV-189) in the United States District Court for
the Northern District of New York seeking an injunction
against disclosure, inter alia, of the requested documents.
Defendant Admiral Corporation (Civil Action 75-531 )
filed suit in the United States District Court for the West-
ern District of Pennsylvania seeking an injunction against
disclosure, inter alia, of the requested documents.
—-~ - * SSS es > = SR et RT Sg ee gpg seer aoe ees oe th ve
A30 Complaint
11. Defendant corporations applied for temporary
restraining orders prohibiting disclosure of the requested
documents in each of the actions described in paragraph
10 hereof. In each case, the Commission has consented
to said applications and as a result, temporary restraining
orders have been entered in each case for periods of up to
60 days, and disclosure of the requested documents to
plaintiffs has thereby been prevented.
12. By letter dated April 28, 1975, plaintiff Consumers
Union notified defendant Commission and defendant
Dunn that the Commission’s action in consenting to such
a temporary restraining order would be deemed a denial
of plainiiffs’ rights to the requested documents and that
plaintiffs would seek their remedy in court.
13. The requested documents are subject to manda-
tory disclosure under the Act, and the continued and pro-
longed withholding of such documents by defendant Com-
mission, including its consent to applications by defendant
corporations for said temporary restraining orders violates
the Act. Plaintiffs have been and are irreparably harmed
thereby and lack an adequate remedy at law.
Wuererore, plaintiffs pray:
(1) that this Court declare that the requested
documents must be made immediately available to
plaintiffs for inspection and/or copying;
(2) that this Court permanently enjoin defend-
ant Commission and its agents and employees from
failing to make the requested documents immediately
available to plaintiffs for inspection and/or copying
of the requested documents;
(3) that this Court expedite these proceedings;
ee ee ee
Complaint A3l
(4) that this Court award plaintiffs their costs
and disbursements in this action, including reasonable
counsel fees; and
(5) that this Court grant such other relief as the
Court may deem just and proper.
Respectfully submitted,
[Signatures of Counsel Deleted]
A32 Opinion of the District of Columbia District Court
IN THE
UNITED STATES DISTRICT COURT
For THE Districr OF COLUMBIA
Civil Action No. 75-705
CONSUMERS UNION OF UNITED STATES, INC.,
et al.
v.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
September 11, 1975
Opinion.
Ricuey, District Judge.
Plaintiffs Consumers Union of United States, Inc., and
Public Citizens’ Health Research Group filed this action on
May 5, 1975, seeking access under the Freedom of Infor-
mation Act, 5 U.S. C. § 552, to certain reports on television
accidents submitted to the Consumer Product Safety Com-
mission (CPSC) by various television manufacturers. The
defendants in this case are the CPSC, its Chairman, Com-
missioners, and Secretary; and twelve television manufac-
turers which submitted the reports in question. The plain-
tiffs seek relief in the following form: (a) a declaration
that the requested documents, currently in possession of
the CPSC, must be made immediately available to the
plaintiffs for inspection and/or copying; and (b) an in-
junction enjoining the CPSC and its agents and employees
from failing to make the requested documents immediately
available to plaintiffs for inspection and/or copying.
Opinion of the District of Columbia District Court A33
The case is currently before the Court on the motions
of ten television manufacturers to dismiss or, in the alter-
native, to stay these proceedings.’ The defendants claim
that with respect to the Government, the complaint fails
to present a “case or controversy” within the meaning of
Article III, section 2 of the United States Constitution,’
and that with respect to the manufacturers the complaint
fails to state a claim upon which relief can be granted.
The defendant-manufacturers also claim that because a
similar action involving virtually the same issues is pend-
ing in the United States District Court for the District of
Delaware, this action should be dismissed in the interests
of comity and judicial economy.
I. Background.
A somewhat complex course of events provides the
background for this action. In May, 1974, the CPSC is-
sued special orders to television manufacturers requesting
that they submit, inter alia, all accident reports collected
by the manufacturers since the National Comunission on
Product Safety held certain hearings in 1969. The CPSC
also invited the manufacturers to indicate which, if any, of
the reports they submitted were, in the manufacturers’
view, entitled to exemption from disclosure under the Free-
dom of Information Act (FOIA). In June, 1974, plain-
tiffs herein requested access, under the FOIA, to the
documents submitted by the manufacturers in response to
the CPSC’s orders of the previous month. While the
1, Defendants Admiral, Aeronutronic Ford, General Electric,
GTE Sylvania, Magnavox, RCA, Sharp, Toshiba, Warwick, and
Zenith have so moved. The remaining defendants, Motorola,
Matsushita, and the CPSC, have in effect so moved by praying for
dismissal in their answers to the plaintiffs’ complaint.
2. The federal defendant has also, in effect, so moved. See
note 1, supra, and Answer of the Consumer Product Safety Com-
mission at “First Defense”.
A34 Opinion of the District of Columbia District Court
plaintiffs were given access to those reports for which con-
fidentiality was not claimed by the manufacturers, the
plaintiffs were not immediately afforded access to the
documents which the manufacturers claimed were exempt
from the FOIA. Instead, the CPSC, in August, 1974, in-
formed the manufacturers of the plaintiffs’ FOIA request
and directed the manufacturers to substantiate their claims
of confidentiality. In the meantime, the CPSC had deter-
mined, in July, 1974, that the manufacturers’ response to
its first request for documents was not complete; the CPSC
ordered the manufacturers to make further submissions
and extended the plaintiffs’ FOIA request to the additional
data submitted by the manufacturers. Plaintiffs subse-
quently limited their request to exclude documents pro-
tected by the attorney-client privilege or the work-product
doctrine and those portions of documents which contained
the names and addresses of accident victims.
With their request still unanswered, plaintiffs in-
formed the CPSC in October, 1974, that any further delay
would be considered by the plaintiffs as a denial of their
request under the FOIA. As a result of that communica-
tion, representatives of the plaintiffs and the CPSC met
in November, 1974, and agreed upon a timetable for the
completion of CPSC’s review of the voluminous submis-
sions. It was estimated that the CPSC’s legal determina-
tion as to the availability of the requested documents
would be completed by mid-March of 1975. Plaintiffs
acquiesced in that timetable, but expressly reserved the
right to consider additional delay as a denial of their
request.
On March 28, 1975, the CPSC issued its legal deter-
mination that the documents requested by the plaintiffs
did not fall within the exemptions of the FOIA and that,
even if the data were exempt, disclosure by the CPSC was
Opinion of the District of Columbia District Court A35
nonetheless within its discretion and, in this case, appro-
priate in the interest of public health and safety. The
CPSC subsequently notified the television manufacturers
of its decision to release the requested documents and of
its intention to withhold disclosure until May 1, 1975.
Upon said notice, seven of the defendant television manu-
facturers filed separate actions against the CPSC in the
United States District Court for the District of Delaware,’
each seeking an injunction prohibiting disclosure on the
grounds that the release of the documents is barred by the
exemptions to the FOIA and certain portions of the Con-
sumer Product Safety Act, 15 U. S. C. § 2051 et seq. Five
other television manufacturers filed similar separate ac-
tions in the United States District Court for the Southern
District of New York,* the United States District Court for
the Northern District of New York,° and the United States
District Court for the Western District of Pennsylvania.*
In all of the actions, the manufacturers applied for tem-
porary restraining orders prohibiting the release of the
documents pending determination of their motions for
preliminary injunction. The CPSC consented to the tem-
porary restraining order in at least some of the cases."
3. The following manufacturers filed actions in the District of
Delaware: GTE Sylvania (C. A. No. 75-104), RCA (C. A. No.
75-108), Magnavox (C. A. No 75-112), Zenith, (C. A. No, 75-113),
Motorola (C. A. No. 75-114), Warwick (C. A. No. 75-115), and
Aeronutronic Ford (C. A. No. 75-116).
4. Matsushita (C. A. No. 75-2040), Sharp (C. A. No. 75-2049),
and Toshiba (C. A. No. 75-2050), filed actions in the Southern
District of New York.
5. General Electric (75-CV-189) filed suit in the Northern
District of New York.
6. Admiral (C. A. No. 75-531) filed suit in the Western District
of Pennsylvania.
7. The plaintiffs claim that the agency consented to the orders
in all of the cases filed by the manufacturers. Plaintiffs’ complaint
at { 11. The CPSC claims that it consented to some but not all of
A36 Opinion of the District of Columbia District Court
The instant action was filed on May 5, 1975. Subse-
quently, the individual actions filed by the television
manufacturers were consolidated in the District of Dela-
ware.® Oral arguments on the preliminary injunction mo-
tion in the consolidated cases were heard by Chief Judge
Latchum in July, 1975. The documents in question in
both this action and the consolidated cases in Delaware
remain in the possession of the CPSC and subject to the
above-mentioned restraining orders pending Judge Latch-
um’s decision on the motion for preliminary injunction.’
II. No Case or Controversy Exists Between Plaintiffs and
the CPSC.
Plaintiffs invoke the jurisdictional sections of the
FOIA, 5 U. S. C. §552(a)(3), and the Administrative
Procedure Act, 5 U. S. C. § 702, as bases for this Court's
jurisdiction in this case.’ Both statutes pertain to actions
against federal agencies. In this case, plaintiffs seek an
order instructing the agency to provide plaintiffs access to
the documents in question for inspection and/or copying.
At the heart of plaintiffs’ claim is their contention that
the documents are subject to mandatory disclosure under
7. (Cont'd. )
the orders. Answer of the Consumer Product Safety Commission
at 11. For purposes of this motion to dismiss, plaintiffs’ allega-
tions are taken as true.
8. In re: Consumer Product Safety Commission Litigation,
Civil Action Nos. 75-104, 75-108, 75-112, 75-113, 75-114, 75-115,
75-116, 75-122, 75-131, 75-136, 75-150, 75-151, 75-152 (D. Del.).
9. The statement of facts above is drawn from all of the sub-
stantive pleadings in this case.
10. Plaintiffs also invoke the Declaratory Judgment Act, 28
U. S. C. § 2201-02, as a ground for this Court's jurisdiction, plain-
tiffs’ complaint at § 2. e Declaratory Judgment Act is not, how-
ever, 9 statute which confers jurisdiction. See, e.g., Skelly Oil Co.
0. Phillips Petroleum Co., 339 U. S. 667 (1950).
Opinion of the District of Columbia District Court A37
the FOIA." The defendant agency, however, came to
the exact same conclusion in its above-mentioned formal
finding of March 28, 1975. The CPSC and the plaintiffs
thus stand in the same position on the crucial issue in this
case.
The Constitution extends federal courts’ jurisdiction
only to specified cases and controversies.’* Implicit in the
“case and controversy” doctrine is the requirement that
litigation must arise “between adverse litigants.” Muskrat
v. United States, 219 U. S. 346, 361 (1911); Aetna Life
Insurance Co. v. Hawarth, 300 U. S. 227 (1937). Where
opposing litigants desire “the same result,” as here, there
is “no case or controversy within the meaning of Art. III
of the Constitution.” Moore v. Charlotte-Mecklenburg
Board of Education, 402 U. S. 47, 48 (1971); General
Electric Co. v. Bootz Mfg. Co., 289 F. Supp. 504 (D.
Ind. 1968). This Court is faced with the prospect in the
instant action that both the plaintiffs and the CPSC will
submit briefs urging the same conclusion as to the avail-
ability of the documents under the FOIA. In such a pos-
ture, this case does not present a question “in an ad-
versary context,” as required by the Constitution. Flast
v. Cohen, 392 U. S. 83, 95 (1968).
Plaintiffs contend, however, that the “controversy”
which they present as between themselves and the agency
centers on the agency’s failure to contest the temporary
restraining orders issued in the now-consolidated cases
brought by the manufacturers. According to the plain-
tiffs, the agency’s failure to contest the orders constituted
a violation of the agency’s duty under the FOIA to speed-
ily deliver the documents in question once a determination
11. See plaintiffs’ complaint at { 13.
12. U. S. Const., art. ITI, §2. See Golden ov. Zwickler, 394
U. S. 103 (1969); Baker v. Carr, 369 U. S. 186 (1969).
A38 Opinion of the District of Columbia District Court
was made that such documents were subject to disclosure.
Plaintiffs also allege that the agency's failure to contest
the orders reflects a certain lack of good faith toward the
plaintiffs.
As an initial matter, this Court notes, admittedly
without having all of the facts before it,’* that it does
seem curious that the agency, having just completed a
nine-month legal investigation which led to the conclu-
sion that the documents were available under the FOIA,
failed to make even a pro forma opposition to the motions
for restraining orders. However, regardless of any pos-
sible impropriety on the agency’s part, its failure to con-
test the motions does not present a “controversy” between
plaintiffs and the CPSC in this case. Plaintiffs do not ask
for a mere declaration that the agency “shouldn't have”
consented to the orders—it is doubtful, in fact, that such
a “wrong” would be actionable. Plaintiffs ask instead that
the agency be ordered to release the documents to the
plaintiff, and a decision to that effect made by this Court
would necessarily entail a determination that the docu-
ments are subject to disclosure under the FOIA. As dis-
cussed above, there is no adversity between the agency
and the plaintiffs, and thus no case or controversy, with
respect to the FOIA issue.
Plaintiffs point to the case of Robertson v. Depart-
ment of Defense, Civil No. 74-644 (D. D. C., June 19,
1975), in support of their claim that a controversy exists
in the instant action. Robertson involved a very similar
fact situation to this case. The General Motors Corpora-
tion had submitted certain documents to the Department
of Defense which Robertson subsequently requested, for
purposes of inspection, under the FOIA. The Department
determined that some but not all of the documents were
13. See note 7, supra.
Opinion of the District of Columbia District Court A39
subject to FOIA disclosure. General Motors thereupon
sued the Department and other federal defendants in the
United States District Court for the Eastern District of
Virginia, seeking an injunction against the disclosure of
the documents. Robertson countered by filing an FOIA
suit against the Department and General Motors in this
Court. In allowing the plaintiff to maintain suit, Judge
Barrington D. Parker pointed out what is, for purposes of
the instant case, the crucial characteristic of Robertson:
“[I]n the Virginia proceeding and in the matter before
this Court, the government has never taken the position
espoused by Robertson—that the documents, in their en-
tirety, are obtainable under the Act.” Memorandum
Opinion of June 19, 1975, at 8. In Robertson, unlike the
instant action, there were areas of disagreement between
the plaintiff and the governmental defendant."
In essence, what the plaintiffs ask this Court to do in
the instant case is to re-determine whether the restrain-
ing orders obtained by the manufacturers in various fed-
eral district courts should have issued. It is true that the
CPSC consented to the various orders. Nonetheless, it
was the responsibility of each court—and this Court cannot
but assume that said responsibility was met—to make an
independent determination that an order was justified.
See, e.g., Judge Latchum’s Temporary Restraining Order
of April 23, 1975, in RCA Corp. v. United States Consumer
Product Safety Commission, Civil No. 75-108 (D. Del.
filed April 22, 1975). As the United States Court of Ap-
14. Plaintiffs also question the genuineness of the agency's
conclusion on the FOIA issue: “[E]ven if the Commission should
prevail in the Delaware action, it could then decide as a discretion-
ag hae ho hip hn
poo | the Court peg ublic record that “disclosure will ta ado
as soon as the federal defendants are not enjoined from doing so.”
CPSC’s Answer at { 13.
d
A40 Opinion of the District of Columbia District Court
peals for the District of Columbia Circuit has noted, “in
the interests of comity and the orderly administration of
justice we should not attempt to reexamine . . . matters
considered and resolved by . . . a court having authority
equal to our own.” Hilton Hotels Corp. v. Weaver, 325
F. 2d 1010 (1963), cert. denied, 376 U. S. 951 (1964)
(footnote omitted ).
III. Plaintiffs’ Complaint Fails to State a Claim Against
the Defendant-Manufacturers Upon Which Relief
Can Be Granted.
As noted above, this case is brought under the FOIA
and the Administrative Procedure Act. Those statutes
entitle a claimant to relief against federal agencies and,
accordingly, plaintiffs’ complaint is styled to request relief
from inaction by the CPSC. Plaintiffs have also named
twelve television manufacturers as defendants in this case,
but no relief is requested from the manufacturers. In-
deed, the manufacturers are in no position to provide relief
inasmuch as the documents in question are in the posses-
sion of the agency. Thus, as to the defendant-manufac-
turers, plaintiffs “can prove no set of facts in support of
[their] claim which would entitle them to relief.” Conley
v. Gibson, 355 U. S. 41, 45-46 (1957). The defendant-
manufacturers would thus seem to be entitled to dismissal
under Fed. R. Civ. P. 12(b)(6) because of plaintiffs’ fail-
ure to state a claim upon which relief can be granted.
Plaintiffs maintain, however, that because the de-
fendant-manufacturers have such a strong interest in the
outcome of this litigation, they are subject to suit under
the compulsory joinder provision of Fed. R. Civ. P. 19(a).
Assuming arguendo that Rule 19(a) could be so employed
in the current litigation, the plaintiffs would nonetheless
be faced with an uncleared hurdle: lack of jurisdiction.
iP
iD
Opinion of the District of Columbia District Court A41
As noted in the preceding section, there is no case or con-
troversy between plaintiffs and the federal defendant.
Lack of a case or controversy is a jurisdictional defect.
See Aetna Life, supra; Tilley Lamp Co. v. Thacker, 454
F. 2d 805, 808 (5th Cir. 1972). Plaintiffs have suggested
that “even assuming arguendo that no live case or con-
troversy existed between plaintiffs and the Commission,
nothing is clearer than that a very live case or controversy
exists between plaintiffs and the manufacturers.” Plain-
tiffs’ Motion for Summary Judgment at 35. Plaintiffs
would thus provide the missing jurisdictional ingredient
of case or controversy by joining, under Rule 19(a), the
defendant-manufacturers who certainly possess an interest
adverse to plaintiffs’ in this litigation. The plaintiffs’ solu-
tion is ingenious but unfortunately not authorized by
Rule 19, which is “predicated upon the preexistence of
federal jurisdiction over the cause of action .. .” Letmate
v. Baltimore and Ohio R. R., 311 F. Supp. 1059, 1062 (D.
Md. 1970). Rule 19 canot be used “in a way that would
extend the subject matter jurisdiction of the Federal
courts; indeed, Rule 82 precludes any construction of the
Rule that would have such an effect.” 7 Wright and
Miller, Federal Practice and Procedure § 1602, at 20 (foot-
note omitted ); see also Anderson v. United States, 217 F.
Supp. 814 (E. D. Pa. 1963).
IV. Conclusion.
Plaintiffs’ complaint must therefore be dismissed for
failure to present a case or controversy as to the federal
defendant and failure to state a claim upon which relief
can be granted as to the defendant-manufacturers.’* In
15. Defendant-manufacturer Warwick has moved for dismissal
on the additional grounds that this Court lacks personal jurisdiction
over Warwick. In view of the Court's disposition of this case, it is
unnecessary to consider Warwick's motion. '
A42 Opinion of the District of Columbia District Court
reaching this conclusion, the Court notes that it is especially
reluctant to bar the courthouse door when the plaintiff is,
as in the instant case, a representative of the public inter-
est. But the Constitution demands no less, considering the
present posture of this case.
The Court is aware of the possibility that plaintiffs
failed to intervene in the Delaware proceedings in the hope
that this Court would assume jurisdiction in the present
case. In declining to do so, this Court in no way intends
to prejudice any future efforts plaintiffs might make to
intervene in the Delaware proceeding.
An order in accordance with the foregoing Memoran-
dum Opinion will be issued of even date herewith.
/s/ CHanzes R. Ricney
Charles R. Richey
United States District Judge
Dated: September 11, 1975
-
ee ee
Order of the District of Columbia District Court A43
IN THE
UNITED STATES DISTRICT COURT
For THE Distrricr OF COLUMBIA
Civil Action No. 75-705
CONSUMERS UNION OF UNITED STATES,
INC., et al.
vo.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
Order.
This case has come before the Court on the motions
of various defeadants to dismiss and the plaintiffs’ oppo-
sition thereto. The Court has considered the extensive
pleadings filed by the parties in this case, and for the
reasons set forth in the memorandum opinion of the Court
of even date herewith, concludes that the case should be
dismissed because: (a) as to the federal defendant, plain-
tiffs do not present a case or controversy within the mean-
ing of Article III, section 2 of the United States Consti-
tution; and (2) as to the defendant-manufacturers,
plaintiffs do not state a claim upon which relief can be
granted.
Therefore, it is, by the Court, this 11th day of Sep-
tember, 1975,
Orverep, tha’: defendants’ motion to dismiss be, and
the same hereby is, granted; and it is
FuRTHER OnpERED, that this case be, and the same
hereby is, dismissed.
/s/ Cuarves R. RIcHEY
Charles R. Richey
United States District Court
EPID ESI 1 BIBS
aS
A44 First Opinion of the Court of Appeals
FIRST OPINION OF THE COURT OF APPEALS.
UNITED STATES COURT OF APPEALS
For THE District oF COLUMBIA CIRCUIT
No. 75-2059
CONSUMERS UNION OF UNITED STATES, INC.,
et al.
v.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
Before: BAZELON, Chief Judge, and WricHT AND ROBINSON,
Circuit Judges.
Argued September 21, 1976
Decided July 5, 1977
Opinion for the court filed by Circuit Judge Wricurt.
Waricut, Circuit Judge: We consider here an appeal
from a dismissal of an action brought by the appellants
under the Freedom of Information Act (FOIA), 5-U. S. C.
§ 552 (1970 & Supp. V 1975). They seek to obtain, from
the Consumer Product Safety Commission, reports which
various television manufacturers have submitted on tele-
vision-related accidents.
For the reasons stated below, we reverse the District
Court’s dismissal of the plaintiffs’ action and remand the
case for further proceedings.
First Opinion of the Court of Appeals A45
I. THe PARTIES
Appellant Consumers Union is a nonprofit consumer
organization. It provides information—through its monthly
magazine Consumer Reports and through other means—on
the merits, defects, dangers, and comparative efficacy of
consumer goods, including television sets. Appellant Pub-
lic Citizen, also 1 nonprofit organization, funds the Health
Research Group which conducts research and publishes
information for consumers relating to potential hazards to
health and safety from consumer products.
Appellee Consumer Product Safety Commission is an
independent regulatory agency established by Congress in
1972 pursuant to its enactment of the Consumer Product
Safety Act, 15 U. S. C. § 2051 et seq. (Supp. V 1975).
The Commission’s purpose is to help implement the Act’s
policy of establishing “comprehensive and effective regu-
lation over the safety of unreasonably hazardous con-
sumer products.” * Several of the officers of the Commis-
sion and 12 companies that manufacture television sets
and do business in the District of Columbia were, together
with the Commission, also named as defendants below
and are also appellees before this court.
1. H. R. Rep. No. 1153, 92d Cong., 2d Sess. 26 (1972). The
purposes of the Act are:
(1) to protect the public against unreasonable risks of in-
jury associated with consumer products;
(2) to assist consumers in evaluating the comparative
safety of consumer products;
(3) to develop uniform safety standards for consumer
products and to minimize conflicting state and local regula-
tions; and
(4) to promote research and investigation into the causes
and prevention of product-related deaths, illnesses, and injuries.
15 U. S. C. § 2051(b) (Supp. V 1975).
A46 First Opinion of the Court of Appeals
II. BACKGROUND
The background of the present impasse is extensive
and, in some respects, complex. In March 1974 the Com-
mission issued a public notice * announcing that it would
hold a public hearing to investigate hazards encountered
during operation of television receivers and to consider
the necessity of developing safety standards for such re-
ceivers. In the notice the Commission requested certain
technical information and data on television-related acci-
dents from manufacturers of television sets and component
parts. In particular the Commission requested that the
manufacturers submit all accident reports collected since
the National Commission on Product Safety held hearings
on the subject in 1969.° Although a few manufacturers
complied with the Commission’s request, the principal re-
sponse consisted of a six-page summary of accident data
supplied by the Electronics Industry Association (EIA).
After reviewing the data voluntarily submitted, the
Commission concluded that the “information submitted to
the Commission by the EJA on behalf of the [companies
did] not satisfy the Commission’s request.”* Accordingly,
on May 13, 1974 the Commission, acting pursuant to 15
U. S. C. § 2076(b)(1) (Supp. V 1975), sent special or-
ders to 25 manufacturers seeking specified information.’
In the cover letter accompanying the special orders the
Commission noted the possibility of a request for public
access to this information via the FOIA, and the manu-
2. 39 Fep. Rec. 10929 (March 22, 1974).
3. Id.
4. E.g., Special Order of the Commission to General Electric
—— Docket Item 11A, Ex. A-l, in Civil Action (CA) No.
75-136 (D. Del.).
5. Of the appellee manufacturers here, apparently only RCA
did not receive a special order. GTE — Inc. v. Commer
Product Safety Com'n, 404 F. Supp. 352, n. 11 (D. Del. 1975).
First Opinion of the Court of Appeals A47
facturers were instructed to identify data claimed to be
exempt from public disclosure and to substantiate any
such claims. Claims of confidentiality accompanied the
responses of most manufacturers. Again the Commission
reviewed the submitted data and again the Commission
found that certain of the manufacturers had not complied
with the request. Thus on July 26, 1974 supoenas [sic]
duces tecum were issued to the appellee manufacturers
and three other manufacturers* requiring production of
specified technical information and all television-related
accident data.
Appellants’ first request for access, under the FOIA,
to data submitted by the manufacturers was in June 1974
and pertained to the documents submitted in response to
the Commission’s special orders of the previous month.’
Although appellants were given access to those reports for
which confidentiality was not claimed by the manufac-
turers, they were not allowed access to documents which
the manufacturers claimed were exempt from the FOIA.°
Instead, in August 1974 the Commission informed the
manufacturers of appellants’ FOIA request and again di-
rected fhe manufacturers to substantiate their claims of
confidentiality. The Commission also extended appellants’
FOIA request to the additional data which the Commis-
sion later subpoenaed from the manufacturers.’
i i ., and Wells-Gardner
Cinhetde Cleteectan wane acepeanatl Wah Wad ork oot: ¥o-tone
ublic disclosure of data they forwarded to the Commission. Evi-
Gently the Commission did not order all manufacturers of television
sets sold in this country to submit accident reports. GTE Sylvania
Inc. v. Consumer Product Safety Com’n, supra note 5, 404 F. Supp.
at 359 n. 18.
7. Consumers Union of United States v. Consumer Product
Safety Com'n, 400 F. Supp. 848, 850 (D. D. C. 1975).
8. Id.
9. Id.
A48 First Opinion of the Court of Appeals
Appellants subsequently limited their request to ex-
clude documents protected by the attorney-client privilege
or the work product doctrine and those portions of docu-
ments that contained names and addresses of accident
victims. Even with this limitation, however, appellants’
request went unfulfilled.” In October 1974, therefore,
four months after their initial request, appellants informed
the Commission that they would consider any further
delay to be a denial. As a result of that communication,
representatives of appellants and the Commission met in
November 1974 and agreed upon a timetable for comple-
tion of the Commission’s review of the manufacturers’
submissions. It was estimated that the Commission’s legal
determination as to availability of the requested docu-
ments would be completed by mid-March of 1975. Appel-
lants acquiesced in that timetable, but expressly reserved
the right to consider additional delay as a denial of their
request.”
On March 28, 1975—nine months after appellants’
initial request—the Commission issued its legal determi-
nation that the documents requested by appellants did
not fall within the exemptions of the FOIA. It also stated
that, even if the data were exempt from mandatory dis-
closure, disclosure by the Commission was nonetheless
within its discretion and, in this case, appropriate in the
interest of public health and safety.’? The Commission
subsequently notified the television manufacturers of its
decision to release the requested documents on May 1,
1975. After receiving that notice, seven of the manufac-
turers filed separate actions against the Commission in the
United States District Court for the District of Delaware,
10. Id.
11. Id.
12. Id.
ernment
First Opinion of the Court of Appeals A49
each seeking an injunction prohibiting disclosure on the
ground that release of the documents is barred by the
exemptions to the FOIA and certain portions of the Con-
sumer Product Safety Act, 15 U. S. C. §2051 et seq.
(Supp. V 1975).° Five other television manufacturers
filed similar separate actions in the United States District
Court for the Southern District of New York,"* the United
States District Court for the Northern District of New
York,> and the United States District Court for the
Western District of Pennsylvania.”® In all of the actions
the manufacturers applied for temporary restraining orders
prohibiting release of the documents pending determina-
tion of their motions for preliminary injunctions. The
Commission consented to the temporary restraining orders
in at least some of the cases.’7 Subsequently the indi-
vidual actions filed by the television manufacturers were
consolidated in the District of Delaware.* Even though
13. The following manufacturers filed actions in the District of
Delaware: GTE Sylvania (CA No. 75-104), RCA (CA No. 75-108),
Magnavox (CA No. 75-112), Zenith (CA No. 75-113), Motorol
(CA No. 75-114), Warwick (CA No. 75-115), and Aeronutronic
Ford (CA No. 75-116). wg eso
Matushita (CA No. 75-2040), Sharp ( O. 049),
and Toshiba (CA NS. 75-2050) filed actions in the Southern District
of New York.
15. General Electric (75-CV-189) filed suit in the Northern
District of New York. ,
16. Admiral (CA No. 75-531) filed suit in the Western District
of Pennsylvania. Pd ,
: Ilants claimed below that the Commission consente
to Preis ers in all a the cases, while the Commission claimed it
consented to some but not all of the orders. For purposes of the
motion to dismiss, the District Court below accepted appellants
allegations as true. Memorandum Opinion, supra note 7, at 5.
Because our disposition on appeal does not turn on the number of
orders that the Commission consented to, we do not feel it neces-
sary to resolve the issue here or to remand it to the District Court.
18. GTE Sylvania Inc. v. Consumer Product Safety Com’n,
supra note 5.
A50 First Opinion of the Court of Appeals
Rule 65(b) of the Federal Rules of Civil Procedure has
been held to limit the duration of temporary restraining
orders to a total of 20 days, absent consent by the party
against whom the order was directed, Sims v. Greene,
160 F. 2d 512, 516 (3d Cir. 1947), the Commission did
not object to requests for further extensions of the tem-
porary restraining orders, with the result that oral argu-
ment on the manufacturers’ preliminary injunction mo-
tions was not heard until July 23, and the stays ageinst-
the Commission’s releasing the information continued until
those motions were decided. A preliminary injunction,
which the Commission did oppose, was entered on
October 23, 1975, prohibiting production of the data.”
For whatever reason, the appellants did not seek to inter-
vene in this action either to contest the manufacturers in
Delaware or to have the action transferred to the District
of Columbia. And despite full awareness of appellants’
requests for access to the documents, neither the manu-
facturers nor the Commission even attempted to include
appellants as parties or to transfer the cases to the District
of Columbia where appellants could readily be joined.
Furthermore, though the submissions by the Commission
in Delaware plainly put that court on notice of the interest
of appellants in release of the documents, the court did
not on its own motion inquire about the necessity of join-
ing appellants under Rule 19, Fen. R. Civ. P.
After the District Court for the District of Delaware
entered the preliminary injunction, the Commission filed
an interlocutory appeal. The Commission subsequently
filed a voluntary motion for dismissal of the appeal, how-
ever, and on May 10, 1976 the motion was granted.”
19. Id.
20. The Commission’s motion is on file with the clerk of the
Third Circuit, Docket Nos. 76-1095—76-1107.
First Opinion of the Court of Appeals A51
On August 20, 1976 the District Court “closed out” the
case with no further action planned.
III. THe Decision BELOW
The instant FOIA litigation was filed in the District
Court for the District of Columbia on May 5, 1975 and
appellants promptly moved for summary judgment. The
Commission and the manufacturers, however, moved to
dismiss this action on the ground that no case or contro-
versy existed between appellants and the Commission or,
in the alternative, to stay the proceedings pending the
decision in Delaware.
Four months later and 15 months after appellants
initially asked the Commission for access to the docu-
ments, the District Court, without oral argument, filed
an opinion and entered an order dismissing the action.”
The District Court concluded that between appellants and
the Commission there was no case or controversy since
“on the crucial issue in this case”—the claim that the
documents are subject to mandatory disclosure under the
FOIA—appellants and the Commission “came to the exact
same conclusion”: that the documents had to be dis-
closed.” The only reason the Commission was not dis-
closing the documents, according to the court, was that
it was prevented from doing so—first by the several tem-
porary restraining orders and then by the preliminary
injunction issued by the District Court for the District
of Delaware. The court further concluded that, between
21. Consumers Union of United States v. Consumer Product
Safety Com’n, supra note 7.
22. Id., 400 F. Supp. at 851. This most definitely is not, how-
ever, “a situation in which [the Government] confesses error and
represents that the error will be corrected without need for further
court action.” Goosby v. Osser, 409 U. S. 512, 516 n. 4 (1973), and
cases cited therein.
ef
A52 First Opinion of the Court of Appeals
appellants and the manufacturers, there was a failure
to state a claim upon which relief could be granted.”
IV. Tue Issues ON APPEAL
We conclude that the District Court erred, and that
there is a case or controversy” between appellants and
the Commission. At its narrowest compass the case or
controversy to be resolved concerns the threshold ques-
tion of the scope and effect of the proceedings in Dela-
ware. The Commission, echoed by the manufacturers,
renews on appeal its argument—accepted by the District
Court—that, although it would like to provide appellants
with the requested documents, the preliminary injunction
entered by the Delaware District Court unequivocally
precludes it from doing so. Appellants disagree and
deny that the pteliminary injunction entered in Delaware
absolves the Commission of what they believe is the
Commission’s statutory duty to furnish the requested
documents.
This substantial and extensively argued disagreement
among the parties to this action fully satisfies the Article
III case or controversy requirement.” The scope and
23, Consumers Union of United States v. Consumer Product
Safety Com’n, supra note 7, 400 F. Supp. at 853.
; 2A. “The term ‘controversies, if distinguishable at: all from
cases, is so in that it is less comprehensive than the latter, and in-
cludes only suits of a civil nature.” In re Pacific Railway Com-
mission, 32 F. 241, 255 (Circuit Court, N. D. Cal. 1887) (Field,
pf ike" in Aetna Life Ins. Co. v. Haworth, 300 U. S. 227,
25. In his opinion in Aetna Life Ins. Co. v. Haworth, supra
note 24, Chief Justice Hughes provided a now classic explanation
of the requirement:
A “controversy” in this sense must be one that is appro-
eee for judicial determination. A justiciable controversy is
us distinguished from a difference or dispute of a hypotheti-
cal or abstract character; from one that is academic or moot.
First Opinion of the Court of Appeals A53
effect of a prior judgment are always legitimate subjects
of argument and resolution in a subsequent action,” and
the judgment entered by the Delaware District Court
suggests no reason why it should be considered an
exception.
Moxeover, the Commission’s conduct of the Delaware
litigation provides a second, independent reason for reject-
ing appellees’ contention that a case or controversy is
lacking. In fact, reviewing both the administrative and
litigational prelude to the instant appeal, the Commis-
sion’s conduct, in several instances, is not easily reconcil-
able with its ostensible acceptance of appellants’ argument
that the requested documents should be disclosed.” On
25. (Cont'd. )
The controversy must be definite and concretc touching the
legal relations of parties having adverse legal interests. It must
be a real and substantial controversy admitting of specie relief
through a decree of a conclusive character, as distinguished
from an opinion advising what the law would be upon a hypo-
thetical state of facts. ° ° °
300 U. S. at 240-241 (citations omitted ).
26. See RESTATEMENT (SECOND) OF JuDGMENTs § 68 (Tent.
Draft No. 1, 1973); Advisory Committee Note, 39 F. R. D. 69, 106
1966), citing RESTATEMENT OF JUDGMENTS § 68, comment (h),
je (1942); F. James, Crvi PROCEDURE er at 534-535 (1965);
B J. Moore, Feperat Practice { 0.441[1] at 3772-3773 (Moore &
Currier ed. 1974), Watts Cromwell v. County of Sac, 94 U.S. (4
Otto) 351, 352-353 (1877). See also, e.g., Hansberry v. Lee, 311
U. S. 32, 40-41 (1940); Gonzales v. Cassidy, 474 F. 2d 67, 72 (5th
Cir. 1973); Research Corp. v. Edward J. Funk & Sons, Co., 15 F. R.
Serv. 2d 580 (N. D. Ind. 1971).
We take it to be established beyond cavil that, “[i]nsofar as
the ° ° ° judge may have rested his finding of the absence of a
case or controversy on the alleged difficulty of formulating a
remedy, he also erred.” Goosby v. Osser, supra note 22, 409 U. S.
at 517 n. 5, citing Louisiana v. United States, 380 U. S. 145, 154
(1965); Brown v. Board of Education, 349 U. S. 294, 300 (1955).
27. For example, despite the time limits imposed on agencies
which receive FOIA requests, 5 U. S. C. § 552(6) (1970), the Com-
mission took nine months from the date of appellants’ initial request
A54 First Opinion of the Court of Appeals
the basis of this record, we cannot believe that the Com-
mission and the appellants lack the degree of adverseness
necessary under the Constitution.
The existence of a case or controversy having been
established, we must next consider its merits. That is, we
27. (Cont'd. )
for the documents to issue its determination that the documents
could legally be released. See p. 7 supra. Even more “curious”
to borrow the description of the District Court below) is the fact
that the Commission, “having just completed a nine-month legal
ee which led to the conclusion that the documents were
available under the FOIA, failed to make even a pro forma opposi-
tion to the motions for restraining order.” Consumers Union o
United States v. Consumer Product Safety Com’n, supra note 7,
F. Supp. at 852. Also, as noted above, the Commission did not
object to requests for further extensions. See p. 8 supra.
It is true that the temporary restraining orders were eventually
replaced He reliminary injunction, issuance of which was con-
tested by ion. But it is the aftermath of the issuance
of this preliminary injunction that constitutes perhaps the most dis-
turbing aspect of the procedural history of this dispute. The Com-
mission initially adopted the quite logical tack of filing an inter-
pve, 090m from the _— inary injunction. As recounted
above, however, soon after filing the appeal the Commission itself
filed a motion to have the appeal dismissed, and this motion was
, See p. 9 supra. Since that time the Commission has evi-
tly made not a single effort to have the District Court take any
further action on the case or to have the Third Circuit consider on
a the District Court’s grant of the preliminary injunction.
(We particularly stress the Commission's failure to pursue an ap-
peal and its general inaction remaretie Yo i injunction was
granted because these are uncontested facts that, obviously, were
not before the District Court when it entered the order from which
this appeal is taken.)
ag erefore, the prolonged delay and current legal
stalemate in this dispute can be attributed to the Commission’s in-
action. Of course, absent lack of candor or other trifling with the
court by the parties, questionable and even clearly incorrect civil
litigation strategy is ordinarily beyond the concern of an appellate
court. See, eg., Link vo. Wabash R. Co., 370 U. S. 626, 633-634
1962). However, the soos nature of the manufacturers’ suit in
laware and its possible effect on Consumers Union and other
pues FOIA plaintiffs require this court to pay closer than usual
to the general background of this dispute and to the overall
conduct of the parties.
First Opinion of the Court of Appeals A55
must consider whether the Commission and the manufac-
turers or, alternatively, the appellants are correct in their
assessment of the legal effect on this action of the Dela-
ware judgment. At first glance appellees’ position seems
strong. The Delaware District Court preliminarily en-
joined the Commission from releasing the contested docu-
ments, and that injunction has not been modified in any
manner. It would thus appear that appellants’ request
may indeed be foreclosed.
Yet the correctness of this conclusion, toward which
the Commission and the manufacturers urge us so enthu-
siastically, is not nearly as obvious as they would have us
believe. The procedural history of the Delaware proceed-
ing—as adduced by the District Court, as well as in the
appellate briefs and at oral argument—is troubling and
belies the apparent soundness of appellees’ position. There
is, first, the obvious and important fact that the Delaware
District Court never did resolve the merits of the manu-
facturers’ claim that the contested documents should not
be released. Rather, the court limited itself to preliminary
enjoining the Commsision from releasing the documents
in dispute.* The opinion accompanying the injunctive
order unmistakably confined itself to the propriety of relief
pendente lite.” An order of that type is only “a conserva-
tive measure intended ° * ° to save all rights until the
merits of the controversy can be definitely ascertained
* °° It is not an adjudication of rights in any proper
sense of the term * * * [and] it does not follow that the
28. GTE Sylvania, Inc. v. Consumer Product Safety Com‘n,
supra note 5, 404 F. Supp. at 375.
. The Delaware court found that irreparable harm would
am. diecloee of the documents, 404 F. Supp. at 375, and that
the manufacturers had presented a “prima facie case showing a
reasonable probability” that divulgence would be unlawful. Id. at
369, quoting Oburn v. Shapp, 521 F. 2d 142, 148 (3d Cir. 1975).
A56 First Opinion of the Court of Appeals
final adjudication will be in accordance with the inter-
locutory order.” *°
Standing alone the preliminary injunction, despite its
impact on the agency, could not bar the FOIA action insti-
tuted by appellants in the District of Columbia. It would,
of course, weigh heavily in any decision as to which of the
two suits ought, “giving regard to conservation of judicial
resources and comprehensive disposition of litigation,” *
to be stayed or enjoined pending the outcome of the
other.” Here, however, there is no occasion to engage in
the balancing that would ordinarily attend such a situa-
tion, for nearly a year after entry of the preliminary in-
junction the Delaware court entered an order “closing out”
the case with no further action planned.
While the “close-out” language employed by the Dela-
ware court finds no parallel in either that court’s rules or
the Federal Rules of Civil Procedures [sic], it does evince
an understanding—apparently shared by the parties before
it—that the suit had run its course. No one implies that any
intervening determination on the merits has converted the
interlocutory relief into a permanent injunction; ** such
30. United States Electric Lighting Co. v. Metropolitan Club,
6 App. D. C. 536, 544 (1895). Accord, Public Service Coii’n v.
Wisconsin Telephone Co., 289 U. S. 67, 70 (1933); Industrial Bank
of Washington v. Tobriner, 405 F. 2d 1321, 1324 (D. C. Cir. 1968).
31. Kerotest Me. Co. v. C-O-Two Fire Equipment Co., 342
U. S. 180, 183 (1952). Cf. Columbia Plaza Corp. v. Security
National Bank, 525 F. 2d 620, 627 (D. C. Cir. 1975). See also
Colorado River Water Conservation Dist. v. United States, 424 U. S.
800, 817 10808 and cases cited therein; 2 J. Moore, FEepERAL
Practice { 3.06|2] at 736-739 (Moore & Lucas ed. 1975).
32. See, e.g., Kerotest Mfg. Co. v. C-O-Two Fire Equipment
Co., supra note 31, 342 U. S. at 183-184; Columbia Plaza Corp. v.
Security National Bank, supra note 31, 525 F. 2d at 627-628.
33. Neither does anyone contend that the hearing on prelimi-
nary relief was sub silentio consolidated with a hearing on the
merits. See Rule 65(a)(2), Fep. R. Civ. P. In view of the stric-
tures placed upon such a practice, that is not surprising. See, e.g.,
Z a - a —
een + aie AEST ETS
a _ 4s
— eee
First Opinion of the Court of Appeals A57
other possible interpretations of the Delaware court's
order as suggest themselves tend toward the conclusion
that, although the reverse FOIA action was not dismissed
in form, it was dismissed in fact, and by acquiescence of
the parties the matter was dropped.
With that, the preliminary injunction is dead.”
When there is no prospect of an adjudication of the merits,
relief that purports to be temporary, pending such an
adjudication, is obviously superfluous. Whether this “clos-
ing out” acknowledges an informal—or even tacit— “settle-
ment” between the Delaware plaintiffs and the Commis-
sion we need not inquire, since if it did such a settlement
would be void as against public policy.“ Thus the pre-
liminary injunction need hardly be considered an insuper-
able barrier to the suit at bar.
Besides the absence of a disposition on the merits, the
Commission’s conduct of the Delaware litigation is a sec-
ond factor that makes us reluctant to accept, without more,
payee d 272, 275 (3d Cir. 1969 nd,
Brooks v. Nacrelli, 415 F. 2d 272, ir. , on remank
331 F. Supp. 1350 (E. D. Pa. 1971), affd, 473 F. 2d 955 (3d Cir.
1973); W v. Richardson, 497 F. 2d 240, 244 (5th Cir. 1974);
P v. 3750 Lake Shore Drive C ve Building, 463 F. 2d
1055, 1057 (7th Cir. wel: Dry Creek e, Inc. v. United States,
515 F. 2d 926, 935 (10th Cir. 1975). But cf. Fenstermacher v.
Philadelphia N Bank, 493 F. 2d 333, (3d Cir. 1974); Eli
Lilly & Co. v. Generix Drug Sales, Inc., 460 F. 2d 1096, 1106 (5th
Cir. 1972).
34. See, e.g., Wickes Corp. v. Industrial Financial Corp., 493
F. 2d 1173, 1176 (5th Cir. 1974); Rio Hondo Harvesting Corp. v.
Johnson, 293 F. 2d 426, 427 Cir. 1961); Heasley v. Unite
States, 312 F. 2d 641, 648-649 (8th Cir. 1963); Sweeney v. eon
126 F. 97, 99 (9th Cir. 1903), cert. denied, 193 U. S. 671 (1904).
Cf. 11 C. Wricut & A. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 2948 at 427 (are): 7 J. Moore, Feperat Practice { 65.07 at 65-
86 (Moore & Lucas ed. 1975). See also United States v. Profes-
sional Air Traffic Controllers Organization, 449 F. 2d 1299, 1300 (3d
Cir. 1971).
35. Cf. Petkas v. Staats, 501 F. 2d 887 (D. C. Cir. 1974).
I a rh Ci i ee ela tit in et teat te i a
. aequeeinn nampa = more ~
Cn a renee
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A58 First Opinion of the Court of Appeals
the contention that the Delaware proceedings preclude
appellants’ suit here. As described above,” the Commis-
sion was, in several respects, less than vigilant in espous-
ing its putative view that the requested documents should
be disclosed.
Yet another, related reason for declining to give the
Delaware judgment the preemptive effect that appellees
argue it deserves is the absence from the Delaware pro-
ceedings of any party requesting disclosure. Not only
were the appellants in this case not participants in that
suit, neither was any other private party besides the manu-
facturers. Given the Government's peculiar approach to
those proceedings, therefore, the pro-disclosure position
was all but unrepresented. This important consideration
further attenuates any claim that the preliminary injunc-
tion is binding on appellants here.
V. CONCLUSION
Accordingly, we remand this case to the District Court
for the District of Columbia.** The issue on remand will
be, quite simply, whether or not the documents should
in fact be disclosed. In resolving this issue the District
Court for the District of Columbia offers a peculiarly ap-
propriate forum. The party that possesses the requested
information (i.e., the Commission), the parties that re-
quested the information (Consumers Union and Public
36. See pp. 12-13 & note 27 supra.
37. Jurisdiction in the District Court is predicated on 5 U. S. C.
ee) (Supp. V 1975), which provides that under the
On complaint, the district court of the United States 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, has jurisdiction to enjoin the
agency from withholding agency records improperly withheld
from the complainant. ° °
ae
mae
First Opinion of the Court of Appeals A59
Citizens), and the parties that supplied the information
(the manufacturers) are all joined in the suit and are
ready to present their respective views on the merits. We
find no constitutional or procedural bar to adjudication.
Reversed and remanded.
Leth At SOREL SAAT, NE
CRRA ILE SI
A60 Order of the Court of Appeals Denying Rehearing
IN THE
UNITED STATES COURT OF APPEALS
For THE District oF CoLuMBIA CIRCUIT
No. 75-2059
CONSUMERS UNION OF UNITED STATES, INC.,
et al.
vD.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
Before: BazELon, Chief Judge, and Wricut and
Rosinson, Circuit Judges.
Order.
After considering the applications for rehearing filed
by federal appellees, appellees Aeronutronic Ford Corpo-
ration, et al., appellees Admiral Corporation, et al., and
appellee RCA Corporation, together with supporting
memoranda, and appellants’ response, it is
OrperED by the Court that the applications for re-
hearing are denied for the reasons stated in the attached
per curiam.
Per Curiam
For the Court
George A. Fisher, Clerk
By: Rosert A. BONNER
Robert A. Bonner
Chief Deputy Clerk
Order of the Court of Appeals Denying Rehearing A61
Per Curiam: On June 14, 1974 appellants sought
production of the documents in suit here under the Free-
dom of Information Act. Instead of producing the docu-
ments after determining that the Act required production,
appellee Consumer Product Safety Commission (CPSC)
notified intervenors of their intention to do so. Where-
upon intervenors filed injunction proceedings against the
CPSC in various district courts, including the District of
Delaware, seeking to prevent production. Subsequently,
the District Court in Delaware issued a preliminary injunc-
tion precluding production. Later that court ordered the
case closed with the preliminary injunction still pending.
This appeal is from the dismissal of appellants’ FOIA
case by the District Court here on the ground that no case
or controversy existed since the CPSC agrees with appel-
lants that the documents should be produced but is pre-
vented from doing so by the preliminary injunction in the
“closed” Delaware case. We reversed, holding that a case
or controversy did indeed exist because CPSC continues
to refuse to produce the documents.
Since our ruling we are advised that the Delaware
case was marked “closed” for statistical reasons in that the
case had been inactive for some time. Also, within a few
days after our ruling, the Delaware case suddenly became
active with a hearing in court, at which a date for trial on
the merits was set. Appellants here, however, who have
been attempting since 1974 to obtain production of the
documents under FOIA, and against whom the Delaware
litigation is directed, are not parties to the Delaware litiga-
tion. See Rule 19, Fed. R. Civ. P. Since all necessary
parties are before the District Court here, there appears no
reason why the litigation should not proceed here, par-
ticularly since this is the venue authorized by the FOIA.
a
A62 Order of the Court of Appeals Denying Rehearing
5 U. S.C. §552(a)(4)(B) (Supp. IV, 1974).° Since the
Act also provides that actions under it should be expedited,
5 U.S. C. §552(a)(4)(D) (Supp. IV, 1974), at long last
so be it.
So ordered.
* It is noteworthy that the Department of Justi
to transfer the Delaware case to the? District of cen hg a,
Order of the Court of Appeals
Denying Rehearing En Banc A63
IN THE
UNITED STATES COURT OF APPEALS
For THE District oF COLUMBIA CIRCUIT
No. 75-2059
CONSUMERS UNION OF UNITED STATES, INC.,
et al.
Dv.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
Before: BazeLon, Chief Judge, Wricut, TAM,
LEVENTHAL, Ropinson, MacKinnon, Ross and
Wruxey, Circuit Judges.
Order.
On consideration of the suggestions for rehearing en
banc, and no judge in regular active service having re-
quested a vote thereon, it is
Orverep by the Court, en banc, that the aforesaid sug-
gestions are denied.
Per Curiam
For the Court:
George A. Fisher, Clerk
By: Rosert A. BONNER
Robert A. Bonner
Chief Deputy Clerk
A64 Order of the Supreme Court
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D. C. 20543
January 16, 1978
Re: GTE Sylvania, Incorporated, et al. v. Consumers
Union of the United States, et al., No. 77-508
The Court today entered the following order in the
above-entitled case:
The petition for a writ of certiorari is granted.
The judgment is vacated and the case is re-
manded to the United States Court of Appeals
for the District of Columbia Circuit for further
consideration in light of the permanent injunc-
tion entered by the United States District Court
for the District of Delaware on December 8, 1977
in Civil Action No. 75-104.
MIcHAEL Ropak, Jr., Clerk
Manufacturers’ Motion to Set
Briefing Schedule A65
UNITED STATES COURT OF APPEALS
For THE Districr OF COLUMBIA CIRCUIT
No. 75-2059
CONSUMERS UNION OF THE UNITED STATES,
INC., et al.
vo.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
MOTION TO SET BRIEFING SCHEDULE.
Appellees GTE Sylvania Incorporated, RCA Corpo-
ration, The Magnavox Company, Zenith Radio Corpora-
tion, Aeronutronic Ford Corporation, Matsushita Electric
Corporation of America, Toshiba-America, Inc., General
Electric Corporation, and Admiral Corporation hereby
move this Court for an order setting a briefing schedule in
the above-captioned action. In support of this motion,
appellees state as follows:
1. The complaint in this case was filed on May 5, 1975,
by Consumers Union of the United States, Inc., and Public
Citizen’s Health Research Group seeking an order direct-
ing the Consumer Product Safety Commission (“CPSC )
to disclose under the Freedom of Information Act approxi-
mately 120,000 pages of “TV-related accident data ob-
tained by the CPSC from a number of television manu-
facturers. Twelve manufacturers were joined with the
CPSC as defendants.
2. On September 5, 1975, Judge Richey granted mo-
tions by the defendants to dismiss. The District Court
Manufacturers’ Motion to Set
A66 Briefing Schedule
held that as to the CPSC, the complaint presented no “case
or controversy, and as to the manufacturers, the complaint
failed to state a claim upon which relief could be granted.
3. On July 5, 1977, this Court entered a Judgment and
Opinion reversing the order of dismissal entered by Judge
Richey and directing that Judge Richey proceed promptly
to determine “quite simply, whether or not the documents
should in fact be disclosed.” Timely petitions for rehear-
ing with suggestion for rehearing en banc were denied on
August 25, 1977. On September 9, 1977, this Court
granted a stay of its mandate to and including October 3,
1977, pending the filing of petitions for writ of certiorari
with the United States Supreme Court.
4, The appellee-manufacturers filed a petition for writ
of certiorari with the United States Supreme Court on
October 3, 1977. GTE Sylvania Inc., et al. v. Consumers
Union of the United States, Inc., et al., No. 77-508. After
receiving a 20-day extension of time, appellants Consumers
Union and Health Research Group filed an opposition on
November 23, 1977.
5. On December 8, 1977, the United States District
Court for the District of Delaware (Latchum, C. J.) en-
tered a Judgment and Opinion in GTE Sylvania Inc., et al.
v. Consumer Product Safety Commission, et al., C. A. Nos.
75-104, et al., permanently enjoining the CPSC from re-
leasing to the public the same “TV-related accident data”
at issue in this proceeding. Copies of that Judgment and
Opinion are attached as Exhibits 1 and 2, respectively, to
the Motion to Lodge Exhibits accompanying the instant
motion.
6. On January 16, 1978, the United States Supreme
Court entered the following order in GTE Sylvania Inc.,
et al. v. Consumers Union of the United States, Inc., et al.,
No. 77-508:
Manufacturers Motion to Set
Briefing Schedule A67
The petition for a writ of certiorari is granted. The
judgment is vacated and the case is remanded to the
United States Court of Appeals for the District of
Columbia Circuit for further consideration in light of
the permanent injunction entered by the United
States District Court for the District of Delaware on
December 8, 1977 in Civil Action No. 75-104.
7. It is respectfully submitted that further briefing by
the parties is warranted as an aid to this Court in comply-
ing with the Supreme Court's directive to further consider
this case in light of the Delaware courts permanent in-
junction. Appellees suggest that the following schedule be
adopted:
(a) Appellees to file briefs within 45 days after entry
of the order setting briefing schedule;
(b) Appellants to file answering briefs within 30
days; and
(c) Appellees to file reply briefs within 14 days.
Respectfully submitted,
[Signatures of Counsel Deleted]
Dated: January 30, 1978
Requesters’ Motion to Set
A68 Briefing Schedule
UNITED STATES COURT OF APPEALS
For THE District oF CoLumsiA Crrcurr
No. 75-2059
CONSUMERS UNION OF THE
UNITED STATES, INC., et al.
v.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
APPELLANTS’ MOTION TO SET BRIEFING
SCHEDULE ON REMAND. i
On July 14, 1977, this Court issued its opinion re-
versing the decision of the district court and remanding the
case for consideration on the merits. 561 F.2d 349. Ap-
pellees filed various petitions for rehearing, with sug-
gestions for rehearing en banc, which were denied in
orders issued August 25, 1977. 565 F.2d 721. Thereafter,
the non-federal appellees (ten manufacturers of television
sets ) filed a petition for a writ of certiorari in the Supreme
Court which was opposed by both appellants and the fed-
eral appellees. While that petition was pending, the
United States District Court for the District of Delaware
entered a permanent injunction in a related case in favor
of the manufacturers against the federal parties. This fact
was called to the attention of the Supreme Court in a sup-
plemental brief by the manufacturers and urged as a fur-
ther basis for granting full review, or in the alternative, for
summarily vacating the judgment of this Court and direct-
ing this Court to affirm the district court’s dismissal in light
of the permanent injunction in Delaware. Those sug-
Requesters Motion to Set
Briefing Schedule A69
gestions were specifically opposed by appellants in a sup-
plemental memorandum filed in the Supreme Court. The
Supreme Court entered its order on January 16, 1978, in
which it granted the writ, and summarily vacated the de-
cision of this Court and remanded to this Court for further
consideration in light of the permanent injunction in
Delaware.
Although appellants contend that the permanent in-
junction has no effect on their right to pursue this Freedom
of Information Act action, since they were not parties to
the Delaware action and no attempt was ever made to
join them there and that therefore it would be appropriate
for this Court to enter an order simply reaffirming its prior
decisions, it may be that the Court would desire further
briefing on the question. If that is the case, appellants
believe that it would be proper for those parties who con-
tend that the issuance of the permanent injunction is a
reason for a modification of this Court’s prior rulings to
submit their briefs within fourteen days, with replies due
ten days thereafter. This schedule is more than adequate
since the issue has largely been briefed in the Supreme
Court already, and, as this Court recognized in its orders
on rehearing, this case is entitled by statute to expeditious
treatment. 5 U.S. C. §552(a)(4)(D).
Respectfully submitted,
[Signatures of Counsel Deleted]
Dated: Washington, D.C.
February 24, 1978
Order of the Court of Appeals
A70 Requesting Briefs
UNITED STATES COURT OF APPEALS
For THE District or CoLumBiA Circuit
No. 75-2059
CONSUMEhS UNION OF UNITED STATES, INC.,
et al.
v.
CONSUMER PRODUCT SAFETY COMMISSION, et al.
Before Wricut, Chief Judge, and BazELon and Rosinson,
Circuit Judges.
Order.
Filed September 20, 1978
Upon consideration of the respective motions of ap-
pellants and appellees to set a briefing schedule, it is
Orverep by the Court that the parties file, within 20
days from date of this order, memoranda in typewritten
form setting forth their views as to the course this Court
should take in light of the remand of the case by the Su-
preme Court to this Court for further consideration. The
parties are instructed 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,
who were not parties in that case, from litigating in this |
case their claim that the materials at issue should be dis- |
closed. |
Per Curiam
For THE COURT
GrorceE A. FIsHER
Clerk
Opinion of the Delaware District Court
Granting Preliminary Injunction A71
IN THE
UNITED STATES DISTRICT COURT
For THE Districr OF DELAWARE
Civil Action No. 75-104
GTE SYLVANIA INCORPORATED
v.
CONSUMER PRODUCT SAFETY COMMISSION, et al.°
October 23, 1975
Opinion.
Latcuum, Chief Judge.
In these thirteen separate actions, each plaintiff, a
manufacturer of television receivers, seeks a preliminary
injunction restraining the Consumer Product Safety Com-
mission (“Commission”), its members and officers from
disseminating certain information to the public which the
plaintiffs contend is privileged, confidential, misleading
and inaccurate.
Congress, in 1972, enacted the Consumer Product
Safety Act (the “Act”), 15 U. S. C. § 2051 et seq., in order
to “establish comprehensive and effective regulation over
the safety of unreasonably hazardous consumer products.” *
® Consolidated with, RCA Corp., 75-108; Magnavox Co., 75-
112: Zenith Radio Corp., 75-113; Motorola, Inc., 75-114; Warwick
Electronics, Inc., 75-115; Aeronutronic Ford Corp., 75-116; Tele-
dyne Mid-America Corp., 75-122; Admiral Corp., 75-131; General
Electric Co., 75-136; Matsushita Electric Corp. of America, 75-150;
S Electronics Corp., 75-151; and Toshiba America, Inc. v. Con-
sumer Product Safety Commission, 75-152.
1. H. R. Rep. No. 1153, 92d Cong., 2d Sess. 26 (1972). The
purposes of the Act are:
“(1) to protect the public against unreasonable risks of
injury associated with consumer products;
Opinion of the Delaware District Court
A72 Granting Preliminary Injunction
To implement and administer this legislative policy, the
Act established the Commission as an independent regu-
latory agency. Shortly after its creation, the Commission
became concerned about the safety of television sets.
During the spring and summer of 1974, the Commission
sought and obtained television-related accident data from
television manufacturers in three ways: by a general pub-
lic request for information, by a special order pursuant to
15 U. S. C. § 2076(b)(1), and finally by the issuance of
subpoenas duces tecum pursuant to 15 U. S. C. § 2076
(b)(3). Upon receipt of such information, the data was
consolidated and a computer printout was prepared which
listed the alleged accident separately. On March 28, 1975,
the Commission decided to release to the public the bulk
of the television-related accident material in its possession
which it had gathered from the plaintiffs.
Subsequently, each of the thirteen plaintiffs brought a
suit against the Commission’ for an injunction prohibiting
the public dissemination of the information obtained from
each on the ground that such information was privileged,
confidential, misleading and inaccurate. The thirteen
1. (Cont'd. )
(2) to assist consumers in evaluating the comparative
safety of consumer products;
(3) to develop uniform safety standards for consumer
products and to minimize conflicting State and local regula-
tions; and
(4) to promote research and investigation into the causes
and prevention of product-related deaths, illnesses, and in-
juries.” 15 U.S. C. §2051(b).
2. In addition to the Commission, the following members,
officers and employees were named as defendants: Richard O.
Simpson, Chairman, Constance B. Newman, Vice Chairman, R.
David Pittle, Lawrence M. Kushner, Barbara Hackman Franklin,
Commissioners, Sadye E. Dunn, Secr , and Vince DeLuise,
Freedom of Information Officer. They will be referred to collec-
tively as the “Commission” or “defendants.”
Opinion of the Delaware District Court
Granting Preliminary Injunction A73
actions were consolidated * for a hearing on plaintiffs’ mo-
tions for preliminary injunctive relief. The defendants also
consented to the entry of a temporary restraining order *
prohibiting the public disclosure pending the Court’s de-
cision on plaintiffs’ present motions.”
I. Background
In March 1974, the Commission issued a public
notice * announcing that it would hold a public hearing to
investigate the hazards encountered during the operation
of television receivers and to consider the necessity of de-
veloping safety standards for such receivers. By this
notice, the Commission sought certain technical informa-
tion and TV-related accident data from manufacturers of
television sets and the component parts thereof. The
notice described the accident data sought in part as
follows:
“Although the hearing is intended to emphasize
fires and shocks related to TV sets, information per-
taining to all aspects of TV set safety may be sub-
mitted (with the exception of radiation hazards . . .).
3. Docket Item 10 (C. A. No. 75-104).
4. Docket Item 3 (C. A. No. 75-104). The temporary restrain-
ing order was later modified to permit release the gathered
information to four employees of Underwriters Laboratories, Inc.,
which had been retained by the Commission to develop safety
standards for television receivers. In addition the data without
identification of manufacturer, model or chassis number was au-
thorized to be released to Underwriters Laboratories, Inc. and
other individuals involved in developing the safety standards.
Docket Item 34 (C. A. No. 75-104).
5. Defendants also moved for summary judgment in each case
(Docket Item 35, C. A. No. 75-104), but these motions are not
presently before the Court. (Docket Item 42, p. 3, C. A. No.
75-104).
6. 39 Fed. Reg. 10929 (March 22, 1974).
Opinion of the Delaware District Court
AT74 Granting Preliminary Injunction
In particular, each TV manufacturer is requested
to submit all accident reports collected since the 1969
hearings held by the National Commission on Prod-
uct Safety. If present data recording procedures dif-
fer from the method proposed in the 1969 “Electronic
Industry Ad Hoc Engineering Report on Television
Fires’ which was submitted to the National Commis-
sion on Product Safety, place (sic) indicate the pro-
cedures used.” ”
Although a few manufacturers complied with the
Commission’s general request for data, their principal
response consisted of a six page summary of accident data
supplied by the Electronics Industry Association
(“EIA”).°
After reviewing the data voluntarily submitted, the
Commission concluded that “the information submitted to
the Commission by the EIA on behalf of the [Companies
did] not satisfy the Commission’s request.”® Thus on
May 13, 1974, the Commission, acting pursuant to 15
U. S. C. §2076(b)(1),’° sent special orders to twenty-
five manufacturers of television receivers and com-
ponents."* The information sought by these special orders
7. Id. 10930.
8. Par. 5 Affidavit of Constance B. Newman, Vice Chairman
A 4 Commission (“Newman Affd”) Docket Item 27, C. A. No.
9. E.g., Special Order of Commission to General Electric
Company. Docket Item 11A, Ex. A-1, C. A. No. 75-136.
10. 15 U. S. C. § 2076(b)(1) provides: “The Commission shall
have the power—(1) to require, by special or general orders, any
person to submit in writing such reports and answers to questions
as the Commission may prescribe; and such submission shall be
made within such reasonable period and under oath or otherwise
as the Commission may determine.”
11. Of the plaintiffs here, only RCA did not receive a special
order. Newman Affd, par. 6.
Opinion of the Delaware District Court
Granting Preliminary Injunction A75
was broken down into six categories: (1) TV-related acci-
dent data, (2) Current, future-planned and suggested
TV-related safety standards, (3) Quality control and
quality assurance plans, (4) Service technicians, (5) Im-
provement plans for presently used sets, and (6) Specific
technical areas.”
The instructions for the TV-related accident data
category provided:
“You are requested to submit all accident reports col-
lected since the 1969 hearings held by the National
Commission on Product Safety. If present data re-
cording procedures differ from the method proposed
in 1969 ‘Electronics Industry Ad Hoc Engineering
Report on Television Fires’ which was submitted to
the National Commission on Product Safety, please
indicate the procedures used.” **
In the cover letter '* accompanying the special orders,
the Commission “[recognized] that some of the informa-
tion to be submitted [might] be proprietary” and referred
the manufacturer to certain statutory provisions’ de-
signed to protect confidential information supplied to the
government. The Commission encouraged compliance by
stating in the cover letter:
“This information will be received in confidence. It
will not be placed in a public file and will not initially
be made available to the public.”
12. E.g., Special Order of Commission to General Electric
Company. Docket Item 11A, Ex. A-1, C. A. No. 75-136.
13. Id.
14. E.g., Letter of Richard O. Simpson, Chairman of the Com-
mission, to General Electric Company, May 13, 1974. (Docket Item
11A, Ex. A-1, C. A. No. 75-136).
15. 15 U. S. C. § 2055(a)(1), 5 U. S. C. §552(b)(4) & (7),
15 U. S. C. § 2055(a)(2), and 18 U. S. C. § 1905.
Opinion of the Delaware District Court
A76 Granting Preliminary Injunction
However, the possibility of a request for public access to
this information by way of the Freedom of Information
Act (“FOIA”), 5 U.S. C. § 552, was noted, and the manu-
facturers were instructed to identify data claimed to be
exempt from public disclosure and to “substantiate” any
such claims. Claims of confidentiality accompanied the
response of most manufacturers.”*
Again, the Commission was not satisfied with the
data supplied by the manufacturers pursuant to the spe-
cial orders and the companies were notified as follows:
“The Commission has reviewed your response to
its May 13, 1974, Special Order requesting informa-
tion on TV-related fire and shock hazards. Although
we recognize your effort to comply with the terms of
the Special Order, technical analysis shows that your
response fails to provide sufficient information with
respect to certain questions enumerated in the Order.
Accordingly, the Commission has decided to
issue the attached subpoena, pursuant to section
27(b)(3) of the Consumer Product Safety Act [15
U.S. C. § 2076(b)(3)] which specifies the additional
information required.
It should be noted that failure to respond to the
subpoena within the time specified therein may, pur-
suant to section 27(c) of the Act [15 U. S. C.
§ 2076(c)] lead to entry of a court order against you
directing compliance with the Commission’s sub-
poena.” *
16. E.g., Letter of H. C. Burgess, General Electric Co., to
Richard O. Simpson, Chairman of the Commission, May 29, 1974.
Docket Item 11A, Ex. A-2, C. A. No. 75-136.
17. E.g., Letter of Sadye E. Dunn, Secretary of the Commis-
sion, to H. B. Walden, General Electric Co., July 26, 1974 ( Docket
Item 11A, Ex. A-3, C. A. No. 75-136).
ee ee
Opinion of the Delaware District Court
Granting Preliminary Injunction AT77
Thus, on July 26, 1974 subpoenas duces tecum were
issued to the plaintiffs and three other TV manufac-
turers '* requiring the production of certain technical in-
formation and all television-related accident data’ as
follows:
“All TV-related accident reports collected since
the 1969 hearings held by the National Commission
on Product Safety. The term ‘reports’, includes, but is
not limited to, all physical forms of: correspondence,
letters; telegrams; cables; tapes; recordings; photo-
graphs; films; memoranda, including writeups of
telephone calls and other oral communications; press
releases, bulletins; newspaper, magazine or other jour-
nalistic articles; diaries; charts; contracts; agreements;
and any other writing prepared by any person or per-
sons, including those by insurance firms, investigators,
laboratories and researchers; and includes both origi-
18. Sony Corp., Sanyo Electric, Inc., and Wells-Gardner Elec-
tronics Corp. were subpoenaed but did not seek to bar public dis-
closure of data which they forwarded to the Commission. Newman
Affd, par. 8. Apparently, the Commission did not order all manu-
facturers of TV sets sold in this country to submit accident reports.
Deposition of Robert L. Northedge (“Northedge Dep.”) p. 78.
Northedge, an electrical engineer, employed by the Bureau of
Engineering Science of the Commission was project manager of
the Commission’s investigation of television hazards.
19. E.g., subpoena duces tecum addressed to H. B. Walden,
General Electric Co., July 26, 1974 (Docket Item 11A, Ex. A-3,
C. A. No. 75-136). Prior to serving the subpoenas the Commission
had been warned of the confusion that might result from the
maa of defining a TV-related accident. Letter of A. E. Allen,
hilco-Ford Corp. to the Commission, May 28, 1974 appended to
Joint Memorandum of GTE Sylvania and Aeronutronic Ford Corp.
in support of motion for preliminary injunction (Docket Item 24,
C. A. No. 75-104). Evidently, there is no standard definition of
TV-related accidents. Northedge Dep. pp. 29-32. Moreover, the
brief preface of the pm ey referred to the Commission’s “in-
vestigation of shock and fire hazards associated with television
receivers,” but the body of the subpoenas designated “[a]ll TV-
related accident reports.”
a Oe Ae a ee ee as el ee Et ee ne
Opinion of the Delaware District Court
A78 Granting Preliminary Injunction
nals and copies whether or not sent or received. The
term ‘reports’ includes those reports maintained on a
form (sample attached) designed by members of the
Electronics Industries Association (EIA) and sub-
mitted to the National Commission on Product Safety
in November 1969 and also those reports maintained
on any and all forms substituted for the attached
sample EIA form.” *°
Standards of reliability and accuracy for the data
sought were indicated on sample data forms accompany-
the subpoenas.
“The purported information in this form is based
upon such reports as are available but in many cases
will be incomplete, unverified and even incorrect.” ”
The Commission sought unverified information intention-
ally because it wanted to obtain as large a data base as
possible. Again, accident reports supplied in compliance
with the subpoena duces tecum were accompanied by
claims of confidentiality.2* However, the Commission did
not mention the issue of confidentiality in either the sub-
poena or the cover letter.
In order to reduce the information contained on the
approximately 120,000 pieces of paper received in response
to the subpoenas duces tecum to a manageable form, the
20. The description of TV-related accident data was identical
for each subpoena. On the other hand, the technical information
requested did vary slightly from manufacturer to manufacturer,
but, generally, it corresponded to the materials sought in the May
13, 1974 special order. (Newman Affd, par. 9.)
21. Docket Item 35, C. A. No. 75-104.
22. Northedge Dep. pp. 169, 200, 258.
23. Newman Affd, par. 10; E.g., Letter of F. R. Wellner,
General Electric Co., to 7 eer E. Dunn, Secretary of the Commis-
sion, October 22, 1974 (Docket Item 11A, Ex. A-4, C. A. No.
74-136).
VBAB e.
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Opinion of the Delaware District Court
Granting Preliminary Injunction A79
Commission retained Tracor-Jitco, Inc. (“Tracor”) to ex-
tract and categorize the data contained in the accident re-
ports.** This consolidation of information was designed to
assist the organization engaged in developing safety stand-
ards and also to make the accident data more meaningful
to members of the public who might inspect it under the
Freedom of Information Act.” Data summary sheets were
prepared by gleaning from accident reports the appropri-
ate responses for the several categories.** Although many
reports did not contain enough data to answer each ques-
tion,” the Commission was seeking as much information
in manageable form as possible.
Tracor was responsble for transferring information
from the accident reports to the data summary sheets from
which the computer cards could be keypunched. In order
to ensure that Tracor’s employees performed the tasks ac-
curately, Tracor’s supervisor initially reviewed every sheet
and later performed random checks by comparing the ex-
tracted data against the original report. Also, Robert A.
24. Newman Affd, pars. 10, 15.
25. Northedge Dep. pp. 24-25; Memorandum of Robert L.
Northedge to Enid Rubenstein of the Commission, December 3,
1974 (Docket Item 11A, Ex. B, C. A. No. 75-136).
26. A memorandum from Edward J. Cull, Office of General
Counsel, to the Commissioners Seager org 2, March
21, 1975 (Docket Item 11A, Ex. A-7, C. A. No. 75-136) lists twenty-
five categories of extracted information: (1) file number assi
to the accident, (2) manufacturer, (3) model numbers, (4) chassis
number, (5) TV type (color or black and white), (6) chassis type,
(7) switch type, (8) model type, (9) cabinet material, (10) year
of manufacture, (11) owner's initials, (12) failed part, (13) loca-
tion of failed part in set, (14) — indication of trouble, (15)
repaired prior to accident, (16) electric power status, (17) time in
electric power status, (18) of accident, (19) time of day,
(20) state, (21) location, (22) number of injuries, (23) number
of fatalities, (24) damage and (25) amount and type of claims.
The Newman affidavit indicates that there were twenty-seven cate-
gories of information. Newman Affd, par. 15(a).
27. Northedge Dep. pp. 190-94.
Opinion of the Delaware District Court
A80 Granting Preliminary Injunction
Yereance, a consultant retained by the Commission,
screened the same sheets that the Tracor supervisor exam-
ined. Finally, Robert L. Northedge, the Commission
project manager, reviewed some of the abstracts.”*
Then, the information on the data summary sheets
was keypunched by another organization under contract
with the Commission and was read into a Commission
computer program which produced a printout of the in-
formation previously coded.” The printout was reviewed
but only about fifty individual accident reports were
checked against their summaries on the computer print-
out.”
At this point, there were 10,765 separate line items; *
each line item represented a separate report. Tracor next
undertook a duplication search. The duplication search
was carried out by selecting a particular category of in-
formation and grouping the reports according to a com-
mon parameter within that category. For example, the
accidents reported_were grouped by the states in which
they occurred; they were also grouped alphabetically by
the initials of the victim; listing model numbers consecu-
tively constituted another method. After grouping, sum-
maries exhibiting the same classifying parameters were in-
spected for other similarities. When the comparison
indicated that the reports might be related, the original
accident reports were examined.” As a result of this
endeavor, separate reports of the same incident were con-
28. Id. pp. 216-20. It was not considered necessary to review
every data sheet. Id. p. 219.
29. At least 99 percent of the accident reports summarized on
the computer printout were obtained through the subpoenas duces
tecum. Id. p. 247.
30. Id. p. 112.
31. Id. p. 221.
32. Id. pp. 223-225.
Soe
eat ASE SIDI I 2
Opinion of the Delaware District Court
Granting Preliminary Injunction A81
solidated and exact duplicates were eliminated. This win-
nowing procedure reduced the number of accident reports
to 7,620."
Tracor also classified as confidential the identity of
the victim and any documents encompassed by the work
product doctrine and the attorney-client privilege. This
information, therefore, has been excluded from the filed
accident reports and computer printout.”
A Commission consultant, Robert A. Yereance, pre-
pared a report captioned “Analysis of TV Accident Data” *
(“Yereance Report”), the purpose of which was stated to
be as follows:
“To assist in the processing of the TV-related
accident data and to analyze and summarize the data
following completion of the data processing, the Com-
mission hired a consultant, Robert A. Yereance. Mr.
Yereance has prepared for the benefit of the offeror
which has been selected to develop a TV standard, a
report entitled, “Analysis of TV Accident Data.’ This
report, which is based upon the accident data sub-
mitted to the Commission by the manufacturers, ana-
lyzes that data in terms of the number of television
sets in use in the United States and the relative inci-
dence of television-related accidents. The report does
not identify a particular manufacturer, TV model, or
chassis; it contains only industry-wide statistics. The
33. Newman Affd, par. 17.
34. Id. par. 15(c).
35. Id. par. 17.
36. Docket Item 41, C. A. No. 75-104. The temporary restrain-
ing order initially covered the Yereance Report. See note 4, supra.
However, subsequent modification of that order (Docket Item 34,
C. A. No. 75-104) provided that the Yereance Report, absent
objection from plaintiffs, could be forwarded to Underwriters Lab-
oratories, Inc. and those individuals assisting that organization in
the development of safety standards.
Opinion of the Delaware District Court
A82 Granting Preliminary Injunction
purposes of this report were to answer basic questions
concerning TV-related hazards to provide a picture of
the magnitude or relative significance of hazards that
exist in TV sets currently in use, and to point out in-
formation which should prove valuable in the develop-
ment of a standard to reduce hazards.” *”
The requirement that manufacturers submit reports
of dubious validity apparently reflected the Commission’s
concern that limiting the subpoenas to only verified re-
ports would result in a data base which would be too small
for proper analysis.** Also, it was thought that trends in-
dicating design inadequacies of a particular manufacturer
might appear.” However, the Commission never at-
tempted to distinguish the verified reports from the un-
verified reports.“ Indeed of the more than 7,600 tabulated
reports, the Commission investigated less than 100 of
them.“
Furthermore, the confusion generated by the lack of a
clear definition of “TV-related accident” “ is aptly reflected
in the following dialogue between counsel for RCA and
the Commission’s project manager, Robert L. Northedge:
“Q. [By Mr. Tiger] Mere speculation is enough
to characterize it as a TV-related accident?
A. [By Mr. Northedge] For the purposes for
which we subpoenaed this information, yes.
Q. .Is it proper to characterize as a TV-related
accident the situation where someone is watching tele-
37. Newman Affd, par. 18.
38. Id. par. 9; Northedge Dep. pp. 169, 200, 258.
42. See note 19 supra.
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Opinion of the Delaware District Court
Granting Preliminary Injunction A83
vision while smoking a cigarette and the lit cigarette
falls in the cushioning of a chair and starts a fire?
(Whereupon, the reporter read the pending
question. )
THe Wrrness: I wouldn't think that would be
proper.
Q. [By Mr. Tiger] What if, during the fire, the
TV caught on fire?
A. [By Mr. Northedge] It would be classified as
a TV-related accident.
Q. Is it proper to characterize as a TV-related
accident the situation where a fire results from defec-
tive wiring in the house and the point of origin of the
fire happens to be in the area of the television set?
A. Yes, because it is possible that the TV could
have—we don’t know, but it is possible that the TV
could have caused the short circuit in the wall outlet.
Q. What if the TV didn’t cause the sbort_circuit
in the wall outlet, it was caused by something else?
A. Well, in many cases we don’t know this so it
is entered as a TV-related fire.
Q. Is it proper to characterize as a TV-related
accident, the situation where a burning candle sitting
on top of a television set melts the cabinet?
A. Yes.” *
Thus, it appears that an accident which would have been
“TV-related” in one view could feasibly be perceived by
another as not being “TV-related.” That the Commission
was well aware of the confusion and its consequences is
43. Northedge Dep. pp. 120-21. The following would also be
classified as “TV-related accidents”: cutting a finger on a screw
protruding from a TV cabinet, id. p. 35; sustaining a hernia while
e
“fo a TV set, id. pp. 35, 116;
been p
caused by a candle that had
aced on top of a TV cabinet, id. pp. 172-73.
Opinion of the Delaware District Court
A84 Granting Preliminary Injunction
clearly reflected in an internal memorandum which reads
in part:
“It should be noted that some manufacturers ap-
pear to have submitted accident reports pertaining to
fire and shock incidents only. Whereas, other manu-
facturers have submitted incident reports on TV tube
implosions, carrying handle failures; (sic) instability
of TV stands, etc., as well as incident reports on fire
and shock.” “*
Moreover, although some manufacturers did not com-
ply fully with the subpoena, the Commission never made
any effort to compel the appropriate response “° because it
had made “a technical judgment that sufficient information
[had] been collectively submitted by the sixteen manufac-
turers to significantly facilitate the Commission’s regula-
tory development activities for TV receivers.” “°
Finally, the Commission’s disclaimer accompanying
the release to the public of the data submitted by manu-
facturers who are not parties to these actions focused on
another critical source of inaccuracy:
“The television accident statistics being released to
you may be misleading because some television manu-
facturers were more conscientious then (sic) others in
maintaining television accident files.” **
44. Bureau of Engineering Sciences of the Commission, “Re-
rt on Subpoena Compliance,” Dec. 3, 1974 (Docket Item 11A,
Ex. B, C. A. No. 75-136).
45. Northedge Dep. pp. 259-61.
46. Memorandum of Robert L. Rornente to Enid Rubenstein
of the Commission, December 3, 1974 (Docket Item 11A, Ex. B,
C. A. No. 75-136).
47. Newman Affd, par. 28. “It is recognized that some tele-
vision manufacturers have apparently been more conscientious in
= accident data than others and thus, the release of the
accident data might be misleading in some cases, i.e., a higher
Re nn oh ee
LON ee Re
we by Vatdinenta Ces ties ook pat eT DAS
Opinion of the Delaware District Court
Granting Preliminary Injunction A85
Notwithstanding this melange of inaccuracies, the
Commission reached a final decision on March 28, 1975 **
to release to the public the TV-related accident data and
the computer printout compiled from the information ob-
tained from the plaintiffs.° In deciding to release this in-
formation to the public, the Commission relied * upon a
memorandum ™ prepared by its Office of General Counsel.
The reasons for the disclosure are not clearly and explicitly
set forth in this memorandum. However, it does state,
47. (Cont’d.)
accident rate for one partic
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