RESPONDENT: United States
LOCATION: Herricks School District
DOCKET NO.: 47
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 368 US 208 (1961)
ARGUED: Nov 09, 1961
DECIDED: Dec 11, 1961
Facts of the case
Media for St. Regis Paper Company v. United States
Audio Transcription for Oral Argument - November 09, 1961 in St. Regis Paper Company v. United States
Number 47, St.Regis Paper Company, Petitioner, versus United States.
Horace R. Lamb:
If Your Honors please.
This is a review which involves additional questions of administrative agency acts, notably the Federal Trade Commission.
It involves questions that arise under the Administrative Procedure Act, some of which, I think, have never previously been determined by the Court, and also, questions under the Federal Trade Commission Act which that the District Court below indicated were noble questions.
The petition for certiorari raised or requested review on six separate questions in the Court's order, however, granting review, which is in the record at page 237.
Certiorari was allowed on March 27, 1961, limited to four questions designated by the same numbers that we had used in our petition, namely, numbers 2, 3, 5 and 6.
Now, I have to point out, Your Honor, that in the brief for the United States, served only a few days ago, under which we have replied by a brief filed today, there has been injected improperly, we believe, an additional question.
You will recall that the question on which you will allow review, numbered 5 on page 237 reads as follows, "Our petitioners retained and filed copies of -- of confidential reports to the Bureau of Census for the Census of Manufacture subject to the investigative process of the Commission.
Now, on that very question, which was presented to this Court in Federal Trade Commission against Dilger, decision from the Seventh Circuit, this Court denied certiorari.
And at that time, on the petition for certiorari, the then Solicitor General did not sign the petition but he added at the foot of the petition, his statement of the difference of views in the Government Departments that the Federal Trade Commission and the Antitrust Division of the Department of Justice felt there should be no confidential of treatment accorded these retained copies of census reports, whereas the Department of Commerce, Bureau of Census, Bureau of the Budget are quite the contrary that it would destroy the whole policy and the purpose of reporting census --
We'll recess now --
Horace R. Lamb:
Mr. -- we'll recess now.
Horace R. Lamb:
Before the lunch and adjournment, I had referred to the questions on which certiorari was allowed and referred to the confidential treatment of the census, and I was mentioning the new issue, new question which, for the first time, had been raised here in the reply brief of the Solicitor General, namely, that we had waived our right to the confidential treatment of -- of the census reports.
Now, on the main question, I read from the brief of the Solicitor General that he is in accord with our position, and I understand his position to be the same as his predecessor in regard to the petition for certiorari in the Dilger case to which I had referred briefly before the adjournment.
But on this waiver question, which a large part of the Government's brief attempts to discuss, I think, I must, at the outset, state that our position is that that's an improper additional question to raise here.
First, we say that it's in violation of Rule 40, subparagraph (1), small (d) (2) of the rules of this Court, which we have quoted in our reply brief.
And that -- under that rule, we believe this Court will disregard and will not consider this additional question of waiver.
And we further point out that under all of the appellate decisions, it is universally held that it's unfair to an adversary to raise in the court of last resort for the first time, a issue never previously raised in any of these proceedings.
And I think the decisions support our position on that point.
But even in fact, we say that the Solicitor General has overlooked the fact that during the entire course of this investigation by the Federal Trade Commission, it has consistently been our position that census reports should be accorded confidential treatment.
It's his position that because in the informal proceedings before a representative of the staff of the Commission, we did allow inspection of certain census reports of some companies.
And because in the further proceedings to which I'll refer on a subpoena duces tecum issued by the -- the Commission, we did produce certain copies of the reports, filed reports and in fact, we had obtained photocopies because we couldn't locate some of the filed copies of the reports of the Census of Manufacture.
And we refer to the positions expressly stated on this point, long before answer, the disposition of the Solicitor General but only in our answer did we raise it for the first time.
But as I point out in the reply brief, we raised it not only in the answer but prior to that, in a letter written as long ago as August 18th, 1959 to the Commission's Secretary, which is quoted in part at page 6 of the reply brief of the petitioner where I made the point that among a number of items in which information was requested by the Commission, they were of a confidential nature and in our view, cannot properly -- the Commission cannot properly require that such information be furnished.
And I said this, “We refer particularly to request for copies of reports for the Census of Manufacture which have been held confidential," citing cases.
Was that before that letter, Mr. Lamb?
Was that before you furnished any of these reports that are now relied on as your waiver?
Horace R. Lamb:
That was not before we had given an opportunity to inspect certain reports, and I think it was after certain reports had been furnished under the subpoena duces tecum which is -- as I recall, it was in the year 1958.