Chrysler Corp. v. Schlesinger
| Decision Date | 18 October 1977 |
| Docket Number | No. 76-1970,No. 76-2238,Nos. 76-1970 and 76-2238,76-1970,76-2238,s. 76-1970 and 76-2238 |
| Citation | 565 F.2d 1172 |
| Parties | 15 Fair Empl.Prac.Cas. 1217, 15 Empl. Prac. Dec. P 7868, 24 Cont.Cas.Fed. (CCH) 81,818, 3 Media L. Rep. 1192 CHRYSLER CORPORATION, Appellant inv. James A. SCHLESINGER, Secretary United States Department of Defense, Lt. Gen. Wallace Robinson, Director, Defense Supply Agency, Philip J. Davis, Director, Office of Federal Contract Compliance, and John Dunlop, Secretary United States Department of Labor, Appellants in |
| Court | U.S. Court of Appeals — Third Circuit |
Burt A. Braverman, Borovsky, Smetana, Ehrlich & Kronenberg, Alan Raywid, Washington, D. C., A. William Rolf, Detroit, Mich., for Chrysler Corp.; Michael Goldman, David Anderson, Potter, Anderson & Corroon, Wilmington, Del., of counsel.
Irving Jaffe, Acting Asst. Atty. Gen., Washington, D. C., W. Laird Stabler, Jr., U. S. Atty., Wilmington, Del., Paul Blankenstein, Morton Hollander, Attys., Appellate
Section, Civ. Div., Dept. of Justice, Washington, D. C., for federal appellants.
Victor H. Kramer, Charles E. Hill, Washington, D. C., for amicus.
Before VAN DUSEN, ADAMS and GIBBONS, Circuit Judges.
Plaintiff, Chrysler Corporation (Chrysler), appeals and defendants, federal government officials, 1 cross-appeal from a final judgment of the district court in an action for injunctive and declaratory relief aimed at preventing public disclosure of certain documents furnished by Chrysler to federal governmental agencies. The action was originally prompted by the decision of the defendants to honor a request by third parties 2 for public disclosure of the contested documents under the Freedom of Information Act (FOIA). 3 The district court, after a trial de novo, permanently enjoined public disclosure of certain portions of the contested documents, but denied the full range of injunctive relief requested by Chrysler, and also denied its request for a declaratory judgment that any future disclosure of similar documents would violate federal law. Chrysler appeals from the denial of the full declaratory and injunctive relief it requested. The federal government defendants in their cross-appeal originally contended (1) that Chrysler has no right to judicial review of an agency decision to disclose information requested by third parties under the FOIA; (2) that even if judicial review is available, the scope of review is limited to that defined in the Administrative Procedure Act 4 and does not include a trial de novo; and (3) that even if a trial de novo was proper, the district court erred in enjoining disclosure of portions of the contested documents. After the government's initial brief was filed in this court, the Solicitor General, in a petition for a writ of certiorari to review the decision of the Fourth Circuit in Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom., Brown v. Westinghouse Elec. Corp., 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977), took the position that the exceptions to judicial review listed in 5 U.S.C. § 701 were inapplicable to so-called reverse FOIA actions 5 and that Pub.L.No. 94-574, 90 Stat. 2721, eliminated federal sovereign immunity as a bar to such review. We have been advised by the Justice Department that it is now the government's position that judicial review is available to parties objecting to disclosure of information under the FOIA, but that the Administrative Procedure Act controls our scope of review. Chrysler contended in the district court, and continues to urge here, that any disclosure of the contested documents was prohibited by several federal statutes to which specific reference will be made hereafter and by the due process clause of the fifth amendment. It maintained in the district court, and urges here, that a trial de novo was proper. Because we are in substantial agreement with the government's present position, we vacate the judgment of the district court and remand for further proceedings.
Chrysler is a government contractor. As a condition of its doing business with the The Secretary of Labor has delegated administrative responsibility for the enforcement of the Executive Order to the Director of the Office of Federal Contract Compliance (OFCC). 12 The Director of OFCC has designated various federal agencies as "compliance agencies." These compliance agencies have primary responsibility for assuring adherence to the Executive Order by contractors within certain geographic areas or industrial classifications. 13 In Chrysler's case the Defense Supply Agency of the Department of Defense (DSA) is the designated compliance agency. As part of its monitoring duties DSA has conducted "compliance reviews" of Chrysler's employment practices. These reviews consist of an examination of Chrysler's EEO-1 and AAP documents and on site inspections of its facilities. Compliance reviews result in a compliance review report (CRR), setting forth information supplied by the contractor, an analysis of his performance, and recommendations for sanctions or corrective measures. 14 DSA is also responsible for investigation and resolution of complaints of violations of the Executive Order 15 and must file a "complaint investigation report" (CIR) with OFCC within sixty days of the receipt of a complaint. 16
government it is required by an Executive Order, 6 and regulations promulgated thereunder by the Secretary of Labor, 7 to employ and treat all employees without regard to race, color, religion, sex, or national origin and to take affirmative action to eliminate discrimination in employment. In order to monitor compliance with these requirements, federal regulations require that every government contractor or subcontractor with fifty or more employees and a contract valued at $50,000 or more prepare and file an annual Employer Information Report, known as an EEO-1 report. 8 The EEO-1 report contains data on the number of women and minority group members employed. Contractors must also prepare and make available for inspection by appropriate federal agencies an Affirmative Action Program (AAP), providing detailed information on their past and projected employment of women and minority group members. 9 The AAP must contain a "utilization analysis" which describes the occupational levels of minority personnel employed by the contractor and "goals and time tables" by which opportunities for minority group members can be improved. 10 The failure of a contractor to comply with the Executive Order and regulations can result in the cancellation, termination, or suspension of existing contracts and debarment from future awards. 11
Regulations promulgated by the Secretary of Labor contain rules providing for access by the public to information in the records of OFCC or its various compliance agencies. 17
These regulations implement 5 U.S.C. § 552, the Freedom of Information Act and supplement the policy and regulations of the Department of Labor, 29 C.F.R. Part 70. It is the policy of the OFCC to disclose information to the public and to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment. . . .
41 C.F.R. § 60-40.1. Consistent with the general policy of disclosure to aid in eliminating employment discrimination, the regulations provide:
Upon the request of any person for identifiable records obtained or generated pursuant to Executive Order 11246 (as amended) such records shall be made available for inspection and copying, notwithstanding the applicability of the exemption from mandatory disclosure set forth in 5 U.S.C. 552 subsection (b), if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC or the Compliance Agencies except in the case of records disclosure of which is prohibited by law.
41 C.F.R. 60-40.2(a). Thus the regulations contain a blanket waiver of any authority the government might have to resist disclosure of any information which falls into one of the nine categories of information which are exempt from mandatory disclosure under the FOIA. 18 OFCC's regulations also provide that ". . . all contract compliance documents within the custody of the OFCC and the Compliance Agencies shall be disclosed upon request unless specifically prohibited by law or as limited elsewhere herein." 41 C.F.R. § 60-40.2(b). This blanket and mandatory disclosure requirement with respect to compliance documents is qualified in 41 C.F.R. § 60-40.3(a), which lists six categories of documents or parts thereof which "are exempt from mandatory disclosure by the OFCC and the compliance agencies, and should be withheld if it is determined that the requested information does not further the public interest and might impede the discharge of any of the functions of the OFCC or the Compliance Agencies." 19 Thus, even information within The contested documents in this case include Chrysler's EEO-1 reports and information which falls under three of the six exempt categories defined in 41 C.F.R. § 60-40.3(a), 23 namely: (1) those parts of Chrysler's AAP's which contain confidential commercial information indicating that a contractor plans major changes or shifts in his personnel requirements not yet publicly disclosed, 24 (2) those parts of Chrysler's AAP's which set forth staffing patterns and pay scales the release of which would injure the business or financial position of the contractor, 25 and (3) compliance investigation files and related documents to the extent that such information constitutes trade secrets and confidential commercial or financial information. 26
these six categories may be disclosed if OFCC determines that such disclosure is in the public interest and does not impede the discharge of the functions of...
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