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ROBERTSON v. DOD

June 19, 1975

Reuben B. Robertson, III, Plaintiff,
v.
Department of Defense, et al., Defendants


Parker, D.J.


The opinion of the court was delivered by: PARKER

PARKER, D.J.:

This is an action brought under the Freedom of Information Act (FOIA or Act), 5 U.S.C. § 552 (1970), in which Reuben B. Robertson, III, a private citizen, seeks to obtain access to certain civil rights compliance reports submitted by the defendant General Motors Corporation (GM) to the defendant Department of Defense. Also named as a defendant is James R. Schlesinger, Secretary of Defense.

 By Executive Orders 10925 *fn1" and 11114 *fn2" a Federal policy was promulgated requiring companies contracting with the United States Government to agree not to discriminate against an employee or applicant for employment because of race, color, religion, sex or national origin. The Department of Labor was designated by Executive Order 11246 *fn3" to assure that contractors comply with their non-discrimination contract commitment. Under regulations issued by the Department of Labor each government contracting agency is primarily responsible for obtaining compliance. *fn4" Within the Department of Defense, the Director of the Defense Supply Agency (DSA) and more particularly the DSA Office of Contract Compliance bears this responsibility subject to the Department of Labor regulations. Among these regulations are provisions requiring government contractors to submit compliance information and reports to the contracting agency. These include annual reports on Standard Form 100 (EEO-1's) *fn5" and Affirmative Action Plans (AAP's). *fn6"

 The plaintiff seeks injunctive relief, compelling disclosure of documents submitted by GM to the Department of Defense: the 1973 EEO-1's and AAP's for facilities located in Bedford, Indiana and Danville, Illinois.

 The issues presently before the Court are: (1) whether the proceedings in a similar action filed in the United States District Court for the Eastern District of Virginia, which are summarized infra, involving the same documents, require entry of summary judgment in favor of GM, and, if not, (2) whether plaintiff Robertson is entitled to partial summary judgment on the grounds that the documents are not, as urged by GM, within the scope of the third and sixth exemptions of the FOIA, 5 U.S.C. § 552(b)(3) and (6). General Motors has filed a motion for summary judgment and the plaintiff has filed a cross-motion for partial summary judgment. For reasons set forth in this opinion, the Court concludes that GM's motion for summary judgment should be denied, and Robertson's motion for partial summary judgment should be granted.

 On November 2, 1973 plaintiff first requested copies of the above documents from the DSA. There then ensued correspondence between the DSA and GM and the DSA indicated its intention to make certain portions of the documents available to the plaintiff.

 Shortly thereafter, on April 10, 1974, GM filed suit against the Department of Defense, the Defense Supply Agency, the Office of Federal Contract Compliance and the Department of Labor in the United States District Court for the Eastern District of Virginia seeking an injunction against disclosure of the documents. *fn7" In that action GM claimed that the documents were exempt from disclosure under the fourth exemption of the Act as "matters that are . . . trade secrets and commercial or financial information obtained from a person and privileged or confidential." *fn8" General Motors further claimed that the documents were exempt from disclosure under 42 U.S.C. § 2000e-8(e) and 18 U.S.C. § 1905. *fn9" On April 12, 1974 that court issued a temporary restraining order against the defendants, directing them not to release any portions of the documents. Approximately a week later Robertson learned of the Virginia action, but made no attempt to intervene. Instead, on April 26, 1974, he filed the FOIA proceeding in this Court.

 A preliminary injunction was issued by the Virginia court on May 9, 1974. Later, on December 20, 1974 a decree of permanent injunction was entered enjoining the defendants from releasing certain portions of the documents. The court found that those portions fell within the fourth exemption of the FOIA and were protected from disclosure by 18 U.S.C. § 1905. On February 27, 1975 the United States Court of Appeals for the Fourth Circuit, expressing no views on the merits, issued a stay pending appeal directing the defendants not to release any portions of the documents. *fn10"

 The federal defendants in this action have taken the position that certain portions of the documents are confidential commercial or financial data which, if released, could injure GM's competitive position and are exempt from disclosure under the fourth exemption. Other portions would be disclosed were it not for the Virginia injunction. These defendants have not taken any position on the two motions presently before the Court -- that of GM for summary judgment and Robertson for partial summary judgment.

 MOTION OF GENERAL MOTORS FOR SUMMARY JUDGMENT

 A multi-pronged argument is launched by GM to support the summary judgment motion: (1) exclusive jurisdiction; (2) comity; and (3) collateral estoppel.

 Exclusive Jurisdiction

 General Motors advances the argument that the Virginia District Court, having first exercised jurisdiction over the question of access to the documents, has sole and complete jurisdiction. Such an argument depends entirely, however, on analogizing the Virginia and District of Columbia proceedings to actions in rem or quasi in rem. In such proceedings the governing principle is that the court having custody and control over the property or res may proceed to grant the appropriate relief. And where two courts attempt to exercise in rem or quasi in rem jurisdiction over the same property the doctrine provides that the court first acquiring jurisdiction proceeds without interference from the other. Princess Lida v. Thompson, 305 U.S. 456, 83 L. Ed. 285, 59 S. Ct. 275 (1939); United States v. Bank of New York & Trust Co., 296 U.S. 463, 477, 80 L. Ed. 331, 56 S. Ct. 343 (1936), and cited cases.

 A proceeding in rem is traditionally regarded as one taken against the property itself for the purpose of disposition among contesting claimants. But in this proceeding Robertson is not asserting any right, title or possessory interest in the requested documents. Rather, he seeks only access to and review of them under the Act and injunctive relief to secure those results against the defendants over whom this Court has jurisdiction. This proceeding is not one in rem, and where the judgment sought is in personam and an injunction is requested compelling or restraining action by a defendant, federal courts having concurrent jurisdiction may proceed until a final ...


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