Green v. Department of Commerce
| Decision Date | 04 March 1980 |
| Docket Number | No. 79-1509,79-1509 |
| Citation | 618 F.2d 836 |
| Parties | Mark GREEN and Corporate Accountability Research Group v. DEPARTMENT OF COMMERCE, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-363).
Harland F. Leathers, Sp. Asst. to the Asst. Atty. Gen., Civ. Div., Dept. of Justice, Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time brief was filed, Dennis Alton Dutterer, Asst. U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellant. Patricia G. Reeves, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellant.
David C. Vladeck, Washington, D. C., with whom Alan B. Morrison and Girardeau A. Spann, Washington, D. C., were on brief, for appellees.
Before WRIGHT, Chief Judge, and McGOWAN and MIKVA, Circuit Judges.
Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
The Department of Commerce (Department) appeals from an order of the District Court in favor of plaintiff-appellee Mark Green 1 in this Freedom of Information Act (FOIA) 2 suit. Green seeks access to some 62,000 documents (boycott reports) submitted to the Department by United States exporters and related service organizations between January 1, 1965 and October 15, 1976. The reports concern requests by foreign nations for cooperation with boycotts against countries friendly to the United States. Pursuant to statute, 50 U.S.C. App. § 2403(c)(1) (1976), and Department regulations, 15 C.F.R. § 369.6 (1979), United States persons who receive a request to cooperate with an illegal boycott must file a report with the Department stating (1) the name of the United States firm receiving the request, (2) the date of the request, (3) the name of the country against which the boycott is directed, (4) the name and country of the party making the request, (5) the number of transactions to which the request was applicable, (6) the type of request received, (7) a general description of the commodities or data covered by the request and their total dollar value, and (8) a statement about whether the United States firm will comply with the request. The boycott report forms stated:
CONFIDENTIAL. Information furnished herewith is deemed confidential and will not be published or disclosed except as specified in Section 7(c) of the Export Administration Act of 1969 as amended (50 USC app. 2406(c)).
Joint Appendix (JA) 104. Prior to amendment in 1977, 3 Pub.L. No. 95-52 §§ 113(a), 201(c), Section 7(c) of the Export Administration Act provided:
No department, agency, or official exercising any functions under this Act (sections 2401 to 2413 of this Appendix) shall publish or disclose information obtained hereunder which is deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless the head of such department or agency determines that the withholding thereof is contrary to the national interest.
50 U.S.C. App. § 2406(c) (1976) (brackets in original).
On March 14, 1975 plaintiffs-appellees filed a request with the Department under FOIA for "all records in the possession of the Department of Commerce which relate to any request, demand or other pressure exerted in an effort to obtain or deter cooperation in a restrictive trade or business practice relating to an international boycott." JA 315. The Department refused to release the requested documents, and this suit followed. In the District Court the Department asserted two defenses to the suit under FOIA: Exemption 3 4 (materials "specifically exempted from disclosure by statute") and Exemption 4 5 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential").
Following this court's decision in American Jewish Congress v. Kreps, 574 F.2d 624 (D.C.Cir.1978), which concerned an Exemption 3 claim identical to the one at bar, 6 the District Court rejected the Department's defense based on Exemption 3. In addition, the District Court rejected a blanket exemption for the boycott reports under Exemption 4. It then granted "judgment" to the plaintiffs in the case, subject to certain conditions: in order to protect the confidentiality of any sensitive matters in the reports, the court ordered that the companies that submitted boycott reports be notified that the reports would be disclosed, so that they could object to specific disclosures that might cause them competitive injury. 7 Only after the submitting companies had responded would the court make a final determination on release of any documents. The Department appealed from this order, and the District Court stayed further proceedings pending disposition of the appeal.
Appellees moved in this court for dismissal of the appeal as not being a final judgment and, in the alternative, for summary affirmance on the Exemption 3 issue. A motions panel of this court denied the motion to dismiss, but granted summary affirmance on the Exemption 3 claim on the strength of American Jewish Congress v. Kreps, supra, 574 F.2d 624. 8 Accordingly, only the Exemption 4 claim remains at issue.
As a preliminary matter, this court must determine whether we have jurisdiction to hear this appeal. Although appellees originally moved for dismissal on jurisdictional grounds, they now defend the appealability of the order. Both parties stated at oral argument that an appeal was properly taken under 28 U.S.C. § 1291 (1976) or under id. § 1292(a)(1). The agreement of the parties, however, does not settle the question. Parties may not confer jurisdiction upon the court by consent. Mansfield, Coldwater & Lake Michigan R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884); 9 rather, it is the duty of this court to dismiss whenever it becomes apparent that we lack jurisdiction. Potomac Passengers Ass'n v. Chesapeake & Ohio R. Co., 520 F.2d 91, 95 & n.22 (D.C.Cir. 1975). For reasons which follow, we conclude that the order of the District Court in this case is not a final judgment, and we therefore dismiss this appeal.
Subject to certain exceptions, the federal Courts of Appeals are limited in their jurisdiction to review of "final decisions of the district courts * * *." 28 U.S.C. § 1291 (1976). 10 The order under review here is not such a "final decision." It cannot be characterized as "final" in the sense of being an order that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). On the contrary, the District Court has not yet determined whether to order release of any documents sought by appellees. The court has merely heard and rejected two of the Department's legal defenses.
Left to be decided is the dispositive issue: whether any of the documents qualify for Exemption 4 as being likely "to cause substantial harm to the competitive position of the person from whom the information was obtained." Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974). Until the court makes this determination, it will not order any documents released; it will issue no final judgment. We must remember that the plaintiffs did not seek a ruling on an abstract legal question or an order notifying submitters of boycott reports that they are to be released absent objection: the plaintiffs sought disclosure of the documents.
Ambiguous language in the District Court order cannot make appealable a decision that is not. The final paragraph of the order read that it is:
FURTHER ORDERED, that judgment be, and the same hereby is, granted to plaintiffs, subject to such exceptions as may arise as a result of objections made in response to the notice of disclosure.
JA 319. This "judgment" is "subject to such exceptions" that the plaintiffs may receive none or all of the relief they seek. It is not "final" in any practical sense of the word.
A decision on the appeal at this stage of the proceeding might well be unnecessary; alternatively, it might not suffice to settle all the legal issues of the case. After the submitters of the boycott reports respond to the notification, the District Court might decide that the materials are "confidential" within the meaning of Exemption 4, in which case the Department would not need to appeal. Or the issues might be sufficiently narrowed to permit the parties to reach a settlement. Or there might be no objection to release of the reports, in which case the Exemption 4 claim might be untenable. In any of these events, we would have decided hypothetical questions and wasted appellate resources by intervening at this stage. On the other hand, were we to decide this case in favor of the appellees, further legal issues over the disposition of particular documents might later arise, 11 requiring a return to this court for a second appeal. In any event, so long as this court maintains jurisdiction over the case, progress toward a final judgment in the District Court has ground to a halt. The purpose of the final judgment rule to avoid piecemeal review and the attendant "mischief of economic waste and of delayed justice," Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092 (1945) would be defeated by our assuming jurisdiction in this case.
In its opposition to appellees' motion to dismiss the Department asserted three grounds on which appellate jurisdiction might be justified. First, it asserted the collateral order exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Essentially, the Department argued that its right to a blanket exemption would be...
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