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Tf Iuprene (Court of Tme Mnitetb Tate <1AV 7O7 CD ,Z 0 · - , .CD° i 4, , iI : INo. -NO. II - ) tf iuprene (Court of tMe Mnitetb tate -. ) .- OCTOBER TERM, 1982 , . .. 0u FEDERAL TRADE COMMISSION, ET AL., PETITIONERS oo~ V~. O - GROLIER INCORPORATED PETITION FOR A WRIT OF CERTIORARI TO I: THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT-OF COLUMBIA CIRCUIT .. REX E. LEE Solicitor General J. PAUL MCGRATH Assistanit Attorney General .. · - KENNETH S. GELLER Deputy Solicitor General . - SAMUEL A. ALITO,:JR. Assistant to the Solicitor General LEONARD SCHAITMAN ALFRED MOLLIN $4 Attorneys Department ofq'Justice Washington, D.C. 20530 (202) 633-2217 JOHN H. CARLEY General Counsel Federal Trade Comnmission Washingtonz, D.C. 20580 o , ,6 - QUESTION PRESENTED Whether Exemption 5 of the Freedom of Information 3. .: Act, 5 U.S.C. 552(b)(5), exempts from mandatory clis- ,~.P=-= ~0 0 closure the work-product of government attorneys when the litigation for which the material was prepared has ended and the government cannot demonstrate that re- 3o . ': .. ,- lated litigation exists or potentially exists. CDC, , .- : . .:, ?'; O . l - . PARTIES TO THE PROCEEDING The parties in the court of appeals, in addition to those · , " -,- ,. named in the caption, were the members of the Federal ,-_ . .. '. Trade Commission. At present, the members of the Com- mission are James C. -". r'?' "': Miller, III, Chairman, and Michael Pertschuk, David M. Clanton, and Patricia P. Bailey, Commissioners. ':.'-.:' :,'i:~ .:,'o. r.. : .: .... ,.' '% -: ' '. ';' ,,?:'': . .- . -,t:;, = - i 'A,j: ' - ':1,-'l e(- ,?t - ".';,, f?' ·.8.., ., (I) > iii111 C D OFiiTABLE CONTENTS TABLE OF CONTENTS Cases-Continued Page Page CD m CnO Upjohn v. United States, 449 U.S. 383 ............. 7 Opinions below ....................................... 1 uc,,, , Jurisdiction .......................................... 1 Statutes, and rule: 00 Statute involved ................................. 1 Freedom of Information Act, 5 U.S.C. 552: Statement ........................................... 3 5 U.S.C. 552(a)(3) ............................ 2, 8 5 U.S.C. 552(a)(4)(B) ........................ 2, 15 9s .. Reasons for granting the petition ....................... CD 6 5 U.S.C. 552(b)(5) ............... 2-3, 4, 5, 6, 7, 10, 15 rtD Conclusion ........................................... 16 Fed. R. Civ. P.: -. Rule 26(b)(3) ............................. 4, 7, 14 Appendix A .......................................... la Rule 26(c)(2) ................................. 8 Appendix B .......................................... 15a Miscellaneous: Appendix C .......................................... 16a H.R. Rep. No. 1479, 89th Cong., 2d Sess. (1966) .... 8, 9 Appendix D .......................................... 19a Notes of Advisory Committee on 1970 Amendment to Rules, 28 U.S.C. App. at 442 .................... 7 Appendix E .......................................... 21a S. Rep. No. 813, 89th Cong., 1st Sess. (1965) ....... 7 TABLE OF AUTHORITIES Cases: Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215 11 Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480; 509 F.2d 730, cert. denied, 420 U.S. 997 11 EPA v. Mink, 410 U.S. 73 ........................ 8 FOMC v. Merrill, 443 U.S. 340 .................... 7, 15 Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136 ..... 13-14 Hickman v. Taylor, 329 U.S. 495 ............... 7,10, 13 Midland Investment Co. v. Van Alstyne, Noel & Co., 59 F.R .D . 134 .................................... 14 Moody v. IRS, No. 81-2142 (D.C. Cir. June 25, 1982) 15 p Murphy, In re, 560 F.2d 326 ...................... 5, 11 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 ................................ 4, 6, 7, 8, 9, 12, 15 PhiladelphiaElectric Co. v. Anaconda American Brass Co., 275 F.Supp. 146 ........................... 14 Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 .............................................. 13, 14 United States v. Leggett & Platt,Inc. 542 F.2d 655, cert. denied, 430 U.S. 945 ........................... 11 3 I i ·.1 .) - °. 0 C3 x3 O° In toe upremte Court of- tte niteb *tateo °~1j C) - ) Co O a> _ OCTOBER TERM, 1982 No. CDc i FiEDERAL TRADE COMMISSION, ET AL., PETITIONERS CD ( '-Om~.= V. - .0 00 ' -. GROLIER INCORPORATED PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT The Solicitor General, on behalf of the Federal Trade Commission, et al., petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra, la-14a) is reported at 671 F.2d 553. The opinion of the district court (App. E, infra, 21a-23a) is not reported. JURISDICTION The judgment of the court of appeals was entered on February 5, 1982 (App. B, infra, 15a) and a timely peti- tion for rehearing was denied on April 7, 1982 (Apps. C and D, infra, 16a, 19a). By orders of June 29, 1982 and August 3, 1982, the Chief Justice extended the time with- in which to file a petition for a writ of certiorari to and including September 4, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) r11 o -Z~ 2 (NCD C) F ( CD O 0 3 0D 0 °O OD PU)Q ; C- STATUTE H O) ,-. INVOLVED CA (5) inter-agency or intra-agency memorandums >C 'D 0 Subsection (a)(3) of the Freedom of Information Act, 5 or letters which would not be available by law to a 3- - a O U.S.C. 552(a)(3), provides: party other than an agency in litigation with the 0 Except with respect to the records made available agency. U) =I- W- CD CD g - - . o) under paragraphs (1) and (2) of this subsection, each a STATEMENT ?i e o-. agency, upon any request for records which (A) reas- -. o O- onably describes such records and (B) is made in This Freedom of Information Act ("FOIA") suit arose 0C) accordance with published rules stating the time, out of a request by respondent Grolier Incorporated for C) place, fees (if any), and procedures to be followed, documents of the Federal Trade Commission ("FTC") shall make the records promptly available to any 0 concerning, among other things, a covert person. investigation by the FTC of one of Grolier's subsidiaries, the Americana Subsection (a)(4)(B) of the Freedom of Information Corporation (App. A, infra, la).' Americana had been the Act, 5 U.S.C. 552(a)(4)(B), provides: defendant in a civil penalty action filed by the Depart- On complaint, the district court of the United ment of Justice in 1972 (United States v. Americana States in the district in which the complainant re- Corp., Civil No. 388-72 (D.N.J.)) (App. A, infra, la).2 sides, or has his principal place of business, or in The FTC complied in part with the FOIA request, but it which the agency records are situated, or in the withheld part or all of seven documents relating to the District of Columbia, has jurisdiction to enjoin the investigation of Americana. Grolier then brought suit in agency from withholding agency records and to order the production of any agency records the United States District Court for the District of Col- improperly withheld from the complainant. In such a umbia to compel release of those documents. case the court shall determine the matter de novo, and may examine the contents of such agency rec- ords in camera to determine whether such records or I In addition to records relating to the Americana investigation any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, ("Category A" records), Grolier also requested records relating to and the burden is on the agency to sustain its actions. covert investigations of any of its 14 subsidiaries ("Category B" records) and records relating to covert investigations of any related Subsection (b)(5) of the Freedom of Information Act, 5 person, company or entity ("Category C" records). However, Gro- U.S.C. 552(b)(5), provides: lier's district court complaint was confined to Category A and B records, and Grolier later withdrew any claim for further disclosure (b) This section does not apply to matters that of Category B documents. Thus, Grolier's appeal involved only Cate- are- gory A records. See Appellant's Opening Brief at 2 n. 1. * * * * * 2 The civil penalty action was based upon an alleged violation of a 1949 cease and desist order prohibiting misrepresentations in door- to-door sales and false advertising. It was dismissed with prejudice in 1976 after the Commission declined to comply with a district court order directing it to turn over certain documents to the defendant (App. A, infra, 2a). C-C1> ~ 4 'C5 CD CD SCLc C) 5 a, 1 0 CD The FTC contended that certain of the documents," A divided including the four still at issue (i.e., Numbers 3, 5, 6, and court of appeals vacated the district court's C) judgment regarding 7), fell within Exemption 5 of the FOIA, 5 U.S.C. those four documents. The panel majority 552(b)(5), because they were work-product compiled by conceded that "[t]here is no question that the C) X ES F<) . documents FTC attorneys in anticipation of the civil penalty action involved were work-product prepared as a W - O -. part of the Americana action" (App. A, infra, 2a). How- 00 against Americana and therefore would normally be priv- ever, the ileged in the civil discovery context. Because Exemption majority stated that the applicability of Exemp- 0 C: 5 tion 5 of the FOIA depended upon 5 "exempt[s] those documents, and only those docu- "whether these docu- ments continue ments, normally privileged in the civil discovery context" to be privileged against disclosure several C ,) years after the Americana suit was terminated" (ibid.). C) (NLRB v. Sears, Roeback & Co., 421 U.S. 132, 149 3 The court below (1975)), the FTC maintained that the documents sought noted (App.
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