Edward S. IRONS, Appellant, v. William B. SCHUYLER, Commissioner of Patents.
No. 24742.
United States Court of Appeals, District of Columbia Circuit.
Argued March 7, 1972. Decided June 15, 1972.
Supplemental Opinion On Behalf of Rehearing Aug. 21, 1972.
466 F.2d 608
Certiorari Denied Dec. 18, 1972. See 93 S.Ct. 682.
II.
Our conclusion that appellants are ineligible for Title II treatment does not altogether deprive them of the possibility of rehabilitative therapy prior to their return to the community. Title III of NARA would allow appellants to take advantage of therapeutic regime substantially similar to that provided for in Title II. The difference is that for Title III treatment, offenders must first serve their minimum sentences. Title III treatment is available only in conjunction with parole, with requirement for consent of the parole authorities. See
Affirmed.
Ms. Barbara L. Herwig, Atty. Dept. of Justice, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen., Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Walter H. Fleischer, Atty. Dept. of Justice, were on the brief, for appellee. Mr. Robert V. Zener, Atty. Dept. of Justice, also entered an appearance for appellee.
Before FAHY, Senior Circuit Judge, and MacKINNON and ROBB, Circuit Judges.
FAHY, Senior Circuit Judge:
Appellant, plaintiff in the District Court, filed a complaint against the Commissioner of Patents of the United States under the Freedom of Information Act,
The District Court ordered the Commissioner to comply with appellant‘s prayer that he make available аn index of all manuscript decisions rendered since July 4, 1967, the effective date of the Act, conformably with the terms of
I
The position of the Commissioner in support of the court‘s action is that the blanket request for all unpublished manuscript decisions does not comply with the provisions of
Our decision in American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1969), is contrary to appellant‘s position. We there said:
Except with respect to the records made available under paragraph (1) and (2) of this subsection, each agency, on request for identifiable records * * * shall make the records promptly available to any person.
We interpret this paragraph [(a)(3)] as meaning that except with respect to records the agency has made available under paragraphs (1) and (2) in compliance with that portion of this Act, the agency must make all other identifiable records available (unless exempted by subsection (b)) or face judicial cоmpulsion to do so. 133 U.S.App.D.C. at 387, 411 F.2d at 701.
All manuscript decisions requested by appellant are not published opinions which have been made available by the agency, or final opinions made available for public inspection, under
9. There are more than 3,500,000 files of patents, approximately 100,000 files of patent interferences (terminated or unterminated), approximately 180,000 pending patent applications, and well over a million of abandoned patent applications, any of which may contain one or more manuscript decisions.
Appellant filed a counter affidavit taking issue in numerous respects with various other statements in the affidavit of the Associate Solicitor, but without denying the facts recited in paragraph 9. Hоwever, in plaintiff‘s unverified Statement of Genuine Issues Pursuant to Rule 9(b) it is stated that he “disputes,” inter alia, that it would be necessary for the Patent Office personnel to inspect each of the allegedly more than 3,500,000 files referred to in the Associate Solicitor‘s affidavit, in order to locate the totality of the manuscript decisions sought by the complaint, or to isolate the manuscript decisions which are available to the public. Several additional factual items are important. One of these was developed during the hearings before the District Court. The following colloquy occurred between the court and counsel for plaintiff:
THE COURT: You are seeking all unpublished manuscript decisions of the Patent Office, is that correct?
MISS SEARS [counsel for plaintiff]: Yes, your Honor.
THE COURT: Couldn‘t you narrow that. How many opinions do you think are in this category? Could you hazard a guess?
MISS SEARS: I think there are a very large number.
THE COURT: About how many?
MISS SEARS: Many thousands I am quite sure.
THE COURT: And, you are seeking access to all of them?
MISS SEARS: Your Honor, I think the statute requires that the entire public have such access.
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MISS SEARS: Your Honor, I believe the act requires in so mаny words that all of the final opinions, the Patent Office Tribunal be made available.
THE COURT: All unpublished opinions.
MISS SEARS: Your Honor, those unpublished opinions are final opinions—Tribunals of the Patent Office.
The record also shows that some of the manuscript decisions are in 170 to 175
There accordingly is no genuine factual issue but that the request of plaintiff, as Judge Gasch stated, notwithstanding plaintiff‘s dispute noted above, was “a broad, sweeping, indiscriminate request for production lacking any specificity,” and not a requеst for records of a “reasonably identifiable description.”
The Judge continued, we think justifiably, as follows:
The plaintiff has not shown that he has been denied any reasonable request for specific material: . . . It may be true that some of these opinions could be made available under the provisions of the Act if a specific request for an identifiable opinion were made, but a request for all is not specific enough to decide if any particular decision or decisions can be made available.
We held in Bristol-Myers Co. v. F. T. C., 138 U.S.App.D.C. 22, 424 F.2d 935 (1970), that while the statutory requirement relied upon by the Commissioner, that a request for disclosure specify “identifiable records,” is not to be used as a method of withholding records, nevertheless, we continued, the requirement “calls for ‘a reasonable description enabling the Government employee to locate the requested records.‘” 138 U.S.App.D.C. at 25, 424 F.2d at 938. In light of the facts before the District Court the present request does not seem tо us to meet this standard. The case is not one of unwillingness to disclose any identified manuscript decisions but a refusal to make available to appellant all documents described generally as manuscript decisions which have accumulated over more than a hundred years. We think an obligation to do this is not imposed upon the Commissioner by the request made. As construed in our Gulick opinion the Act contemplates that those desiring information not made availablе to the public under the agency‘s published rules—all manuscript decisions have not been made available under the rules—must request the desired records with greater descriptive concentration.
We need not decide that the omission of the Patent Office under published rules to have made all final manuscript opinions public, so that they would be available now under
Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements, United States v. Rumely, 345 U.S. 41, [73 S.Ct. 543, 97 L.Ed. 770], or with an Act taken as an organic whole. Clark v. Uebersee Finanz-Korp [AG], 332 U.S. 480, 488-489. [68 S.Ct. 174, 177, 92 L.Ed. 88].
Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 417, 21 L.Ed.2d 402 (1968). As the Supreme Court stated in Lynch v. Overholser, 369 U.S. 705, 710, 82 S.Ct. 1063, 8 L.Ed.2d 211
Our position is, as in Gulick, that the request of appellant is subject to and does not meet the requirement of paragraph (a)(3) for identifiable records. While this court in Getman v. NLRB, supra, upheld the District Court in requiring compliance by the National Labor Relations Board with a broad request, there was no problem of identification of the records requested. The language, “all unpublished manuscript decisions of the Patent Office,” the terms in which the present request was made, and is still maintained, does describe in general a type of record, but the contours of the records thus described are so broad in the context of the Patent Office files as not to come within a reasonable interpretation of “identifiable records” as this statutory language is used in paragraph (a)(3). All other considerations aside, clearly the request is in terms which seeks records many of which as Judge Gasch pointed out, may be pending patent applications required to be kept confidential by
II
The District Court granted the motion to dismiss the complaint insofar as it covered the request for all unpublished manuscript decisions. Assuming that the court granted the motion to dismiss on the basis of insufficiency of the allegations of the complaint, we think the court was justified in doing so. It appears, however, that the court probably relied upon data not limited to the allegations properly considered on a motion to dismiss. If so, this too was justified because the motion to dismiss was joined with a motion for summary judgment. The action of the court may fairly be construed as a grant of the latter motion as warranted by the law as applied to the facts which present no material factuаl issue precluding the grant of summary judgment.7
III
The order of the District Court does not refer to the allegation of the complaint that plaintiff had requested the Commissioner to make available to plaintiff not only the unpublished manuscript decisions, which we have discussed above, but in addition “such indices as are available.” Appellant presses in this court his claim of right to access to the “available indices” of the manuscript decisions, and points out, as we have noted, that the affidavit of the Associate Solicitor acknowledges the existence of indices in some 175 bound volumes containing, according to appellant, manuscript decisions from 1853 to 1954. Construing the request for indices as separate from the request for all manuscript decisions, we think appellant is entitled to a remand for consideration and disposition of this part of the case, which is undecided by the order on appeal. There appears to be some difference between the parties as to the facts
The order on appeal dismissing the complaint insofar as the request for all unpublished manuscript decisions is concerned, is affirmed, and the case is remanded for further consideration and disposition in a manner not inconsistent with this opinion.
It is so ordered.
SUPPLEMENTAL OPINION ON PETITION FOR REHEARING
FAHY, Senior Circuit Judge.
In his petition for rehearing, appellant suggests that this court mistakenly relied upon American Mail Line, Ltd. v. Gulick, 133 U.S. App.D.C. 382, 411 F.2d 696 (1969), to suрport the position that if an agency has failed to comply with
Turning in the present case to the Act itself rather than to Gulick, we agree that the opinions and orders referred to in
The District Court did not hold, nor do we, that the manuscript decisions of the Patent Office are exempt, as such, from disclosure. But when a request for them is made in such general terms as here, involving a large and indefinite number of records which have accumulated over the entire history of this agen
Even assuming that “all unpublished manuscript decisions” requested were final opinions, or orders, those that are not part of pending patent applications are now public records, made so under published rules of the Patent Office,
The petition for rehearing is denied.
MacKINNON and ROBB, Circuit Judges, concur in the views above expressed and in denial of the petition for rehearing.
Notes
Each agency shall make availаble to the public information as follows:
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(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
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unless the materials are promptly published and copies offered for sale.
Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.
This court in American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1969), held that a party seeking information required to be made available for public inspection and copying by
We are not aware of any scientific demonstration that rehabilitated addicts who were guilty of violent crimes tend, if they return to the habitual use of narcotics, to return also to violent crime. Nor can it be certain that a non-violent criminal, if he relapses after his addiction is “cured,” will not progress to violent crimes. In the absence of such scientific information, we cannot say that it is irrational for Congress to project that when a former drug addict relapses into drug use, he is also likely to engage in violent criminality, if such conduct had appeared in the past as a behavioral pattern.
We have no basis for assuming that the Patent Office has heretofore adopted in bad faith a policy inconsistent in spirit with that now embodied in statutory form in parаgraph (a)(2) of the Act.Applications for patents shall be kept in confidence by the Patent Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner.