Consumers Union of the United States, Inc. And Public Citizen's Health Research Group v. Consumer Product Safety Commission

At the core of this litigation 1 is appellants’ challenge 2 under the Freedom of Information Act (FOIA) 3 to the Consumer Product 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. 4 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 District Court for the District of Delaware in a reverse-FOIA suit involving the same information. 5 We held that the Delaware action, to which appellants were not parties, was no obstacle to their effort in the District Court here. 6 We reasoned that a preliminary injunction is designed merely to preserve the status quo ante pending final decision, and “ ‘is not an adjudication of rights in any proper sense of the term . . . 7 Because the Delaware court had entered an order “closing out” the case before any final stage had been reached, we concluded that the Delaware proceeding was not “an insuperable barrier to the suit at bar.” 8

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. 9 In denying rehearing, we noted that appellants had still not been added as parties to the Delaware proceedings, and explained that “[sjince all necessary parties are before the District Court here, there appears no reason why the litigation should not proceed here, *1213 particularly since this is the venue authorized by the FOIA.” 10

Our prior opinions spurred the manufacturers to renew 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 requesters 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 inconsistent 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.” 11

While a petition to the Supreme Court for a writ of certiorari in this case was pending, the Delaware court issued a permanent injunction. 12 The Supreme Court subsequently granted certiorari and remanded the case to us “for further consideration in light of the permanent injunction.” 13 Thus we are now brought face-to-face with the issue we had earlier reserved: Does a judgment in favor of information-suppliers in a reverse-FOIA suit bar requesters not parties thereto from litigating their contention that the Freedom of Information Act mandates disclosure? 14 The answer, we think, becomes clear once one investigates the interrelationship of the Act and reverse-FOIA suits in light of traditional principles governing preclusion of subsequent litigation.

I. THE RATIONALES FOR FOIA AND REVERSE-FOIA SUITS

Before the Freedom of Information Act was adopted, official dissemination of information was frequently marked by caprice, 15 and suits to obtain information or to forestall its release met with “far from *1214 uniform” 16 judicial treatment. 17 The Act was intended to rationalize agency disclosure policies 18 by providing a mechanism for balancing the public’s “right to know” against the agency’s interest in preserving confidentiality. 19 If a court finds that the Act applies to material for which a request has been properly made, 20 that is the end of the matter; the material must be disclosed 21 for the Act effectuates a eongressional judgment that in those circumstances no public or private interest in secrecy outweighs the benefits attending public access. 22 Moreover, in determining whether the Act is operative, the legislative command that disclosure be the rule and exemptions be narrowly construed 23 must be sedulously observed. But Congress in the same breath specified classes of information to which the Act — and its policy of openness —“do[ ] not apply.” 24 When a court finds *1215 that requested material falls into 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 reconciliation with such other law as is pertinent — whether statute, regulation, the administrative “common law” or general principles of equity. 25

Some of these residual legal rules may endow private parties with legally cognizable interests in the confidentiality of exempted information; others may bestow on some a greater entitlement to information than the Act itself gives the general public. 26 Since the agency’s purposes will only coincidentally correspond with those of nongovernmental parties, it would be folly to entrust these often-critical private interests 27 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 aggrieved by compliance may sue for a declaration whether that release would be lawful. 28 But such liti *1216 gants must first pass through the needle’s eye of the Freedom of Information Act, 29 for if the Act calls for disclosure they have, of course, no right whatsoever to confidentiality. 30 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 discretion to release or retain, or even mandate disclosure, depending on the circumstances. 31

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 otherwise recognize must not be allowed to choke the free flow of data contemplated by Congress in the Freedom of Information Act. Surely such an obstruction would in interposed 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 obtaining the material was a party to the earlier litigation. In our view, no such preemption is warranted, as this case tellingly exemplifies.

II. THEORIES FOR PRECLUSION OF SUBSEQUENT FOIA SUITS

Federal courts in different jurisdictions may sometimes reach conflicting conclusions on the duties of an administrative 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 absolutely 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 jurisdictional domain.

That is exactly the situation here: The Delaware proceeding began, and the Commission was temporarily enjoined, 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 32 for the reasons then stated. 33 That still leaves other alter *1217 natives — dismissal 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.” 34 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, 35 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. 36

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, 37 only rarely precludes nonparties from litigating the same issues afresh. 38 If the FOIA applicant has neither been a party nor otherwise represented in a prior successful reverse-FOIA suit, he will not be blocked from taking his controversy to the courts. 39

The only parties here who were litigants in Delaware are the Consumer Product Safety Commission and the manufacturers who sought to prevent disclosure of materials that the Commission was prepared to turn over to appellants. An agency’s interests in FOIA suits of either stripe diverge markedly from private interests, 40 *1218 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 41 — to bar applicants from information to which the Act mandates access. Far less do they justify departure 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.” 42

Nor can the agency’s role in reverseFOIA 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. 43 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 with it without interference from other courts under suits subsequently instituted.” 44 Though we have not the smallest quarrel with that time-honored dogma, it should not be permitted to hold sway outside situations in which it was designed to *1219 apply. Created to assure judicial efficiency and to reflect abiding respect for other courts, 45 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. 46 When everyone with an interest could have had his claim resolved in one court, it would be senseless to allow some of the parties to initiate concurrent litigation over the same dispute. But that is not this ease. Some — at least appellants — with a stake in the controversy were not before the Delaware court, and accordingly the principle of comity is inapplicable. 47 Even if comity might be thought at all relevant, it would not outweigh the non-parties’ right, guaranteed by the Act 48 and the Constitution 49 to have their claims adjudicated.

III. ACCOMMODATING FOIA AND REVERSE-FOIA SUITS

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 unaffected 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 by that token find themselves subject to the possibility of inconsistent judgments. Threats of that nature are not unprecedented, however, and there are procedural devices aplenty designed to avoid the hazard of conflicting obligations. 50 Resort to them in the present *1220 context, moreover, would have brought about representation of all interests before the court that first addressed the merits, and thereby would have eliminated the problem completely.

Another consequence is that reverseFOIA 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 submitter’s controversy with the agency 51 — 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 interest 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- 52

The manufacturer-plaintiffs could have named appellant-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. 53 They did not. The Commission, with some creativity, could have filed an interpleader counterclaim and joined the requesters on the theory that otherwise the Commission might be exposed to multiple accountability and that, in a dispute over disclosure, information is an indivisible res over which the parties contest. 54 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. 55 But no consideration was given to the mandates of that rule, 56 though, as we now elucidate, its applicability could hardly have been questioned.

If, as the manufacturers and the Commission assert, the Delaware reverseFOIA 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 obligations by reason of [appellants’] claimed interest.” 57 Indeed, the concept of joinder was created to resolve the problem of conflicting exercise of equity jurisdiction. 58 *1221 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 judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

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 injunction 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 litigation 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 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 injunction therein must be drafted to halt only voluntary disclosure by the agency, and to leave unaffected the requesters’ right to seek a subsequent judicial determination that the Act mandates disclosure. 59

IV. CONCLUSION

Appellant 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. 60 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 either actually or constructively before the Court.” 61 This basic tenet of due process can hardly be circumvented through the ritualistic invocation of “comity.” The manufacturers have no valid objection to relitigation of disclosure of this information, “for clearly the plaintiff [in the earlier suit], who himself chose both the forum and *1222 the parties defendant, will not be heard to complain about the sufficiency of the relief obtained] against them.” 62 Nor can the Commission legitimately bemoan the threat of inconsistent obligations since it never attempted to foreclose that possibility by seeking the joinder of appellants in Delaware. 63

The only factor even remotely capable of preventing appellants from prosecuting their FOIA suit toward a result contrary to the broad Delaware reverse-FOIA injunction is their failure to intervene in the proceeding there. 64 We believe, however, that appellants, and perhaps informationrequesters generally, should not suffer from bypasses of this sort. To decide otherwise would force them to accept the choice of, a forum possibly sympathetic to the submitter and surely inconvenient or impossible for the requester. 65 Congress specified the sites proper for judicial consideration of FOIA claims; 66 to allow submitters to force FOIA litigation 67 to occur in other arenas would free the tail to wag the dog. 68

This, in our opinion, is the type of “undue hardship” expressly discountenanced by the Advisory Committee when it *1223 discussed amended Rule 19 in 1966. 69 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. 70 A generally applicable theory of waiver by one who declines to voluntarily step into the proceeding would abrogate 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. 71

This case, therefore, must finally continue toward a decision on the merits in the District Court for the District of Columbia. Its first task is to analyze closely the Delaware 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 Commission. 72 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 disclosure should be the final result.

Remanded.