Lieberman v. FTC, Civ. No. H-84-716.

• Decision Date: 26 November 1984
• Docket Number: Civ. No. H-84-716.
• Citation: 598 F. Supp. 669
• Parties: Joseph I. LIEBERMAN, Attorney General of the State of Connecticut, et al. v. FEDERAL TRADE COMMISSION.
• Court: U.S. District Court — District of Connecticut

598 F. Supp. 669

Joseph I. LIEBERMAN, Attorney General of the State of Connecticut, et al. v. FEDERAL TRADE COMMISSION.

Civ. No. H-84-716.

United States District Court, D. Connecticut.

November 26, 1984.

Robert M. Langer, Asst. Atty. Gen., Hartford, Conn., Stephen P. Kilgriff, Atty. Gen., and Hubert H. Humphrey, III, Atty. Gen., St. Paul, Minn., LeRoy S. Zimmermann, Atty. Gen., and Eugene F. Waye, Atty. Gen., Harrisburg, Pa., Dennis J. Roberts, II, Atty. Gen., and Faith A. LaSalle, Atty. Gen., Providence, R.I., Thomas M. Mengler, Asst. Atty. Gen., Austin, Tex., for plaintiffs.

W. Philip Jones, Asst. U.S. Atty., Hartford, Conn., Howard E. Shapiro, Joanne L. Levine, Sandra M. Vidas, F.T.C., Washington, D.C., for defendant.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

BLUMENFELD, Senior District Judge.

This case arises on plaintiffs' motion for summary judgment seeking a declaratory judgment that the Federal Trade Commission ("Commission") has authority to make available to state law enforcement agencies information generated by the Commission pursuant to the premerger notification provisions of the Hart-Scott-Rodino Act. The defendant Commission has filed a cross-motion for summary judgment.

This case turns solely on an issue of law: Does the Commission have authority to disclose to state law enforcement officials information and documentary materials obtained from companies pursuant to the premerger notification provisions of the Clayton Act § 7A, 15 U.S.C. § 18a (1982), as enacted by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub.L. No. 94-435, 90 Stat. 1383 (1976) ("premerger" or "HSR" materials).

Factual Background

In January 1984, Texaco and Getty agreed to merge and filed information and documentary material with the Commission and Justice Department, as required by section 7A of the Clayton Act. Between January and March, 1984, each of the plaintiff attorneys general¹ requested access to premerger information and documents submitted by Texaco and Getty and to memoranda by Commission staff concerning the merger.² Their requests were made pursuant to the FTC Act § 6(f), 15 U.S.C. § 46(f) (as amended in 1980), which gives the Commission discretionary authority to share certain information with state and federal law enforcement agencies on a nonpublic basis for use in law enforcement proceedings.

The Commission responded to the requests in separate but essentially identical letters dated May 2, 1984. A majority of the Commission concluded that section 6(f) of the FTC Act did not authorize the Commission to share these documents with state officials because section 7A(h) of the Clayton Act prohibited the Commission from disclosing premerger materials. See Texaco, Inc., 3 Trade Reg.Rep. (CCH) ¶ 22,146 at 22,993. Since all the documents sought by the plaintiffs consisted either of premerger materials or of FTC staff memoranda of which information derived from premerger materials was deemed by the Commission to be an inextricable part, the Commission held that it was precluded from granting access to any of the documents sought, whether or not it might otherwise wish to do so. 3 Trade Reg.Rep. at 22,995. Plaintiffs' suit followed the Commission's denial of their requests.

This action was brought under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) and the Declaratory Judgments Act, 28 U.S.C. § 2201. Jurisdiction is based upon 28 U.S.C. §§ 1331 and 1337.

Discussion

This case, arising on cross-motions for summary judgment, presents a pure question of statutory interpretation. It is well settled that courts have primary responsibility over questions of statutory interpretation, Lubrizol Corp. v. EPA, 562 F.2d 807, 816-17 n. 23 (D.C.Cir.1977), and that the cardinal rule for courts to follow in interpreting statutes is to ascertain congressional intent and give effect to the legislative will. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). While it is elementary that the starting point in every case involving the construction of a statute is the language itself, Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979) (citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring); Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978); and Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977)), the court should not be loathe to probe beneath the surface in its search for underlying intent. Mohegan Tribe v. State of Conn., 483 F.Supp. 597, 602 (D.Conn.), aff'd, 638 F.2d 612, cert. denied, 452 U.S. 968, 101 S.Ct. 3124, 69 L.Ed.2d 981 (1980). When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Mohegan Tribe v. State of Conn., supra (citing Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976), quoting United States v. American Trucking Ass'n., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940)).

Nevertheless, the Commission argues that by its terms the statute forbids the Commission to make material acquired pursuant to section 7A available to the state attorneys general. Further, the Commission argues that its interpretation of the statute is entitled to substantial deference, and that it should be upheld so long as its interpretation is a permissible construction of the statute even if the court would read the statute differently. Chevron USA v. NRDC, ___ U.S. ___, ___ ___, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). While there can be no doubt that the interpretation by an agency charged with the administration of a statute is entitled to substantial deference, Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982), such deference is constrained by the court's obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history. Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). Moreover, thoroughness, validity, and consistency of an agency's reasoning are factors that bear upon the amount of deference to be given an agency's interpretation of a statute it is charged with administering. FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23 (1981).

In a recent case, also involving a dispute about how the Clayton Act was to be interpreted, the Supreme Court rejected the FTC's interpretation. In that case the Court said: "In rejecting the Government's present interpretation of Section 8, we by no means depart from our long-held policy of giving great weight to the contemporaneous interpretation of a challenged statute by the agency charged with its enforcement.... But the Government does not come to this case with a consistent history of enforcing or attempting to enforce Section 8 in accord with what it urges now." Bankamerica Corp. v. United States, 462 U.S. 122, 103 S.Ct. 2266, 76 L.Ed.2d 456 (1983) (citations omitted). In Bankamerica, the inconsistency of the Commission's past practice with its later attempts at enforcing section 8 in a way that it had not theretofore been enforced was critical in the Supreme Court's decision to reject the FTC's more recent interpretation. Similarly, in this case, the Commission is attempting to interpret and enforce section 7A(h) in a way which is inconsistent with the agency's past practice.³ The Supreme Court's decision in Bankamerica makes clear that the deference ordinarily due to an agency interpretation is not warranted in this case. See also United States v. Leslie Salt Co., 350 U.S. 383, 396, 76 S.Ct. 416, 423, 100 L.Ed. 441 (1956); Atchison, Topeka & Santa Fe Ry. v. United States, 209 F.Supp. 35, 42 (N.D.Ill.1962) (agency's new interpretation of statute—contrary to former, longstanding view—was entitled to "no weight as an administrative determination"); and Isbrandtsen Co. v. United States, 96 F.Supp. 883, 890-91 (S.D.N.Y. 1951), aff'd per curiam, 342 U.S. 950, 72 S.Ct. 623, 96 L.Ed. 706 (1952) (when agency decisions have lacked uniformity and consistency, "administrative interpretations have little weight").

In light of the inconsistency of the Commission's practice with regard to disclosure to state attorneys general of HSR materials, and in view of the lack of specific legislative history on the question of such disclosures, it is necessary to go beyond a mere superficial examination of the words of the statute.

The Commission argues that it properly determined that it lacked authority to disclose premerger materials to state law enforcement officials. It relies principally on the language of section 7A(h) which provides:

Any information or documentary material filed with the Assistant Attorney General or the Federal Trade Commission pursuant to this section shall be exempt from disclosure under section 552 of title 5 the Freedom of Information Act, and no such information or documentary material may be made public, except as may be relevant to any administrative or judicial action or proceeding. Nothing in this section is intended to prevent disclosure to either body of Congress or to any duly authorized committee or subcommittee of the Congress. Emphasis added.

The Commission also places heavy emphasis on the House Report on Title II of the Hart-Scott-Rodino Act which describes the purposes of section 7A(h) as being to ensure:

that premerger information submitted under this section is confidential and may not be disclosed, except in judicial or administrative proceedings.

H.R.Rep. No. 1373, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad. News 2572, 2638. The House Report is...