# Appendix — GTE Sylvania, Inc. v. Consumers Union of United States, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0062%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 445 U.S. 375 ## Text — > 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 : é 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 — Ss SFG PURI LE HT er = SLEEP OGLE TONLE FLO BN ET EE ELE EE EF PEG ON ee mney wet « 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 re [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0062%3A02. Public record. Not legal advice.