(49 C.F.R. 553.35), the Court ordered the defendants to "submit to the Court forthwith for examination, in camera, all communications, memoranda and documents in their possession emanating from the Office of the President of the United States between March 3, 1971 and September 29, 1971 relating to occupant crash protection for passenger cars, also referred to as passive restraint systems, in order that the Court may determine whether such communications, memoranda and documents constitute petitions for reconsideration of Standard No. 208 dated March 3, 1971."
The defendants thereupon filed an affidavit and claim of executive privilege signed by James Beggs, Under Secretary of Transportation of the United States Department of Transportation. The affidavit stated that there were two documents which should be produced pursuant to the Court's order but the defendants claimed executive privilege as to those documents and refused to comply with the order.
The Court then amended its order of October 29, 1971 to the effect that the defendants, instead of being required to produce the documents forthwith, were required to produce them by November 1, 1971 at 10:00 A.M. The Court also granted the defendants permission pursuant to the provisions of 28 U.S.C. § 1292(b) to immediately appeal the Order of October 29, 1971 as amended.
On November 2, 1971 the Court stayed its Order of October 29, 1971, as amended, pending the defendants appeal to the United States Court of Appeals.
14. On November 10, 1971 the plaintiffs filed a motion requesting that the defendants be enjoined from issuing a final rule based on Notice 13, Docket 69-7 until ten days subsequent to final disposition by the Court of plaintiffs' motion for preliminary injunction. This Court denied the motion on the ground of no jurisdiction. On November 12, 1971 the United States Court of Appeals decided that jurisdiction to rule on the plaintiffs' motion of November 10, 1971 remained in the District Court as permission to appeal under 28 U.S.C. § 1292(b) had not yet been ruled upon by the Court of Appeals.
On November 12, 1971 this Court ordered the defendants to "refrain from the issuance of a final rule based upon Notice 13, Docket 69-7 until ten days subsequent to final disposition by this Court of plaintiffs' motion for preliminary injunction, or until receipt of plaintiffs' comments on Notice 13, whichever first occurs."
15. On November 22, 1971 the United States Court of Appeals denied defendants' petition for permission to appeal this Court's order of October 29, 1971 as amended requiring defendants to produce the documents in question for in camera inspection.
16. On November 23, 1971 the defendants noted their appeal of this Court's order of November 12, 1971 enjoining them from issuing a final rule until ten days after this Court's action upon plaintiffs' motion for a preliminary injunction.
17. The defendants submitted two documents pursuant to the Court's order of October 29, 1971 and after inspecting the documents, in camera, the Court found that they suggested the possibility of the existence of other documents within the contemplation of the Court's order of October 27, 1971. Accordingly, on December 8, 1971 the Court ordered that a search be made of the defendants' files for any additional documents within the scope of the Court's order and if such documents were found they were to be submitted no later than December 10, 1971 at 4:00 p.m. If no such documents were found the defendants were to report such facts to the Court under oath not later than December 10, 1971 at 4:00 p.m.
18. On December 10, 1971 defendants John A. Volpe, Secretary of Transportation and Douglas W. Toms, Administrator, National Highway Traffic Safety Administration submitted affidavits as required. Defendant Volpe's affidavit indicated there were additional documents in the possession of the Department of Transportation which related to an inter-agency ad hoc committee formed by the Office of Science and Technology. On December 20, 1971 this Court ordered that these additional documents be produced for in camera inspection. The documents were produced and have been inspected by the Court.
19. The documents submitted by the defendants for in camera inspection by the Court pursuant to the Court's order of October 29, 1971, as amended, do not constitute petitions for reconsideration of Motor Vehicle Safety Standard No. 208, but are intra-government communications.
20. The documents produced by the defendants for in camera inspection by the Court pursuant to the Court's orders of December 8, 1971 and December 20, 1971, do not constitute petitions for reconsideration of Motor Vehicle Safety Standard No. 208, but are working documents, reports and memoranda relating to the studies, deliberations and considerations of an inter-agency ad hoc committee formed by the Office of Science and Technology involving costs, technological feasibilities, scientific developments and other matters relating to automotive transportation.
21. The absence of the documents in question does not preclude plaintiffs from exercising their right to participate in the rule making procedures and does not prevent them from effectively commenting upon the proposed rule changes.
Conclusions of Law
1. Neither the Motor Vehicle Safety Act nor the Administrative Procedure Act requires that the documents produced by the defendants for in camera inspection pursuant to the Court's orders of October 29, 1971, December 8, 1971 and December 20, 1971 be placed in the public Rules Docket 69-7.
2. The pleadings and evidence in this cause, including the documents examined in camera, have failed to establish a substantial likelihood that plaintiffs will prevail on the merits in that it appears that this Court lacks jurisdiction over the subject matter of this litigation.
3. Plaintiffs have not established that failure of the defendants to place the aforementioned documents in the public rules docket will cause them irreparable injury.
4. Plaintiffs have an adequate statutory remedy at law in that judicial review of orders establishing motor vehicle safety standards is provided for persons adversely affected through a proceeding in the appropriate United States Court of Appeals pursuant to Section 1394(a)(1) of the Motor Vehicle Safety Act.
5. Plaintiffs have not established their entitlement to a preliminary injunction.
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