Consumers Union of the United States, Inc. and Publiccitizen's Health Research Group, Appellants, v. Consumer Product Safety Commission et al, 565 F.2d 721 (D.C. Cir. 1978)

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US Court of Appeals for the District of Columbia Circuit - 565 F.2d 721 (D.C. Cir. 1978)

Aug. 25, 1977. Certiorari Granted Jan. 16, 1978

See 98 S. Ct. 761.




After considering the applications for rehearing filed by federal appellees, appellees Aeronutronic Ford Corporation, et al., appellees Admiral Corporation, et al., and appellee RCA Corporation, together with supporting memoranda, and appellants' response, it is

ORDERED by the court that the applications for rehearing are denied for the reasons stated in the attached per curiam.


On June 14, 1974 appellants sought production of the documents in suit here under the Freedom of Information Act. Instead of producing the documents after determining that the Act required production, appellee Consumer Product Safety Commission (CPSC) notified intervenors of their intention to do so. Whereupon intervenors filed injunction proceedings against the CPSC in various District Courts, including the District of Delaware, seeking to prevent production. Subsequently, the District Court in Delaware issued a preliminary injunction precluding production. Later that court ordered the case closed with the preliminary injunction still pending.

This appeal is from the dismissal of appellants' FOIA case by the District Court here on the ground that no case or controversy existed since the CPSC agrees with appellants that the documents should be produced but is prevented from doing so by the preliminary injunction in the "closed" Delaware case. We reversed, holding that a case or controversy did indeed exist because CPSC continues to refuse to produce the documents.

Since our ruling we are advised that the Delaware case was marked "closed" for statistical reasons in that the case had been inactive for some time. Also, within a few days after our ruling, the Delaware case suddenly became active with a hearing in court, at which a date for trial on the merits was set. Appellants here, however, who have been attempting since 1974 to obtain production of the documents under FOIA, and against whom the Delaware litigation is directed, are not parties to the Delaware litigation. See Rule 19, Fed. R. Civ. P. Since all necessary parties are before the District Court here, there appears no reason why the litigation should not proceed here, particularly since this is the venue authorized by the FOIA. 5 U.S.C. § 552(a) (4) (B) (Supp. IV 1974).*  Since the Act also provides that actions under it should be expedited, 5 U.S.C. § 552(a) (4) (D) (Supp. IV 1974), at long last so be it.

So ordered.


It is noteworthy that the Department of Justice has moved to transfer the Delaware case to the District of Columbia