CONSUMERS U. OF US, INC. v. CONSUMERS PR. SAF. COM'N, Civ. A. No. 75-705.

• Citation: 400 F. Supp. 848
• Decision Date: 12 September 1975
• Docket Number: Civ. A. No. 75-705.
• Parties: CONSUMERS UNION OF UNITED STATES, INC., et al., Plaintiffs, v. CONSUMERS PRODUCT SAFETY COMMISSION et al., Defendants.
• Court: U.S. District Court — District of Columbia

400 F. Supp. 848

CONSUMERS UNION OF UNITED STATES, INC., et al., Plaintiffs, v. CONSUMERS PRODUCT SAFETY COMMISSION et al., Defendants.

Civ. A. No. 75-705.

United States District Court, District of Columbia.

September 12, 1975.

Nancy H. Chasen, Peter H. Schuck, Washington, D. C., for plaintiffs.

Barry Katz, U. S. Dept. of Justice, for defendant, Consumer Product Safety Commission.

Robert L. Palmer, Eugene C. Halloway, III, Washington, D. C., for Aeronutronic Ford and GTE Sylvania.

Joseph A. Katarinec, Bruce Wiegand, Pittsburgh, Pa., for Admiral.

William E. Wickens, Washington, D. C., for General Electric.

Stephen B. Clarkson, Washington, D. C., for Magnavox.

Kevin O. Hughes, Nancy Buc, New York City, for Matsushita.

Walter T. Kuhlmey, Chicago, Ill., for Motorola.

Howard J. Kaufman, Washington, D. C., Charles C. Hileman, Ira P. Tiger, Philadelphia, Pa., for RCA.

William L. Dickey, Washington, D. C., Peter J. Gartland, Peter A. Dankin, New York City, for Sharp.

David Fleischer, New York City, for Toshiba.

Michael A. Stiegel, Chicago, Ill., for Warwick.

Robert S. Carlson, New York City, for Zenith.

MEMORANDUM OPINION

CHARLES R. RICHEY, 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 Information Act, 5 U.S.C. § 552, to certain reports on television accidents submitted to the Consumer Product Safety Commission (CPSC) by various television manufacturers. The defendants in this case are the CPSC, its Chairman, Commissioners, and Secretary; and twelve television manufacturers which submitted the reports in question. The plaintiffs 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 injunction enjoining the CPSC and its agents and employees from failing to make the requested documents immediately available to plaintiffs for inspection and/or copying.

The case is currently before the Court on the motions of ten television manufacturers to dismiss or, in the alternative, to stay these proceedings.¹ 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,² 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 pending 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 issued special orders to television manufacturers requesting that they submit, inter alia, all accident reports collected by the manufacturers since the National Commission 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 Freedom of Information Act (FOIA). In June, 1974, plaintiffs 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 plaintiffs were given access to those reports for which confidentiality 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, informed the manufacturers of the plaintiffs' FOIA request and directed the manufacturers to substantiate their claims of confidentiality. In the meantime, the CPSC had determined, 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 subsequently limited their request to exclude documents protected 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 informed 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 communication, 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 submissions. It was estimated that the CPSC's legal determination 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 determination 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 nonetheless within its discretion and, in this case, appropriate 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 manufacturers filed separate actions against the CPSC in the United States District Court for the District of Delaware,³ 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 Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. Five other television manufacturers filed similar separate actions in the United States District Court for the Southern District of New York,⁴ the United States District Court for the Northern District of New York,⁵ and the United States District Court for the Western District of Pennsylvania.⁶ In all of the actions, the manufacturers applied for temporary restraining orders prohibiting the release of the documents pending determination of their motions for preliminary injunction. The CPSC consented to the temporary restraining order in at least some of the cases.⁷ The instant action was filed on May 5, 1975. Subsequently, the individual actions filed by the television manufacturers were consolidated in the District of Delaware.⁸ Oral arguments on the preliminary injunction motion 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 Latchum's decision on the motion for preliminary injunction.⁹

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.¹⁰ 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 the FOIA.¹¹ 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.¹² 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, 31 S.Ct. 250, 55 L.Ed. 246 (1911); Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (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, 91 S.Ct. 1292, 1293, 28 L.Ed.2d 590 (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 availability of the documents under the FOIA. In such a posture, this case does not present a question "in an adversary context," as required by the Constitution. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (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 plaintiffs, the agency's failure to contest the orders constituted a violation of the agency's duty under the FOIA to speedily deliver the documents in question once a determination 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,¹³ that it does seem curious that the agency, having just completed a nine-month legal investigation which led to the conclusion that the documents were available under...