*1 nevertheless, tion integrity and we will of licensee or capacity not unreasonable merely public to obtain redrafted lan- broadcast in the remand interest. precisely more fits our own. which guage IV. CONCLUSION
Finally, alleged NABB KCOP promise, contained in the its breached In revising procedures opposing broadcast balanced re- agreement, to CORT renewals, license Congress made clear its F Paragraph III ligious programming. intention eliminate inquiry wasteful into agreement provided: the CORT immaterial or insubstantial matters. How- ever, summary process, without safe- Programs. Religious F. guards of an adversarial proceeding, makes keeping 1. In with KCOP’s efforts to it more essential thаt the Commission religious thought, the range cover state clearly reasons its decision on carry locally produced will re KCOP fairly merits. That it was unsuccessful major ligious program representing the in doing so in this case is troubling. The religious denominations, American judicial function of review is enormously will include discussion of current complicated aby clarity failure of on the issues, commentary, religious mus part agency. Ordinarily appro- ic.58 priate course will be to remand some explication, for we cannot supply ration- opinion its first the Commission found ale omitted the agency. That is course agreement the terms of the “that CORT just barely unnecessary in this case. аt issue have been met and that now KCOP provided religious program has balanced Affirmed.
ming.” The Commission said that KCOP complied agreement good
had with the in through
faith a public program affairs
presenting “religious speake topics and disputed public
rs.”59 NABB that a af satisfy agreement,
fairs format could light
especially in of the fact that the Com
mission itself distinguished catego between public of religious programm ries affairs MERVIN, Appellant, Michael N. declined, ing.60 The Commission to infer “such a narrow intention” from the FEDERAL TRADE COMMISSION. agreement’s ambiguous language, especially light pro substantial discretion No. 77-1204. gramming choice accorded licensees. United Appeals, States Court of Again, the result reached District of Columbia Circuit. unreasonable, is despite Commission Argued Jan. 1978. obliqueness of approach. its Commis it doing siоn described what Nov. Decided 1978. language interpretation, permit of contract Dec. 1978. Rehearing Denied allegation ting NABB to counter with the parties that the intention fact clear, implicit,
contrary; yet that the de concluded Commission alleged, promise, even as
viation from ques- a substantial
was insufficient
to raise
F,
Agreement, paragraph
59.
III
J.A. at
Michael N. se. pro Lash, Atty., Jonathan Asst. U. S. Wash- C., Silbert, D. with ington, whom Earl J. U. Atty., Terry, S. A. D. John William Pease Ryan, Michael J. Attys., and Asst. U. S. C., brief, Washington, D. on were for appellee. BAZELON,
Before McGOWAN and MacKINNON, Judges. Circuit Opinion for court PER CURIAM. Opinion filed Judge Circuit BAZEL- ON, concurring in and dissenting in part.
PER CURIAM: N. Mervin tiff-appellant Michael Plain by the Federal Trade Com- employed was he (FTC) until as an mission a pursuing in 1971. After discharged early judicial and administrative variety other 1976 brought he proceedings, presents sepa- three FTC. He against the (1) for of documents claims: disclosure rate Act of Information the Freedom (2) amendment of FTC’s (FOIA); for him, Privacy under the relating records 1974; (3) for reinstatement Act of his on the basis that dismissal damages summary wrongful. On cross-motions granted District Court sum- judgment, FTC all three judgment to the on mary We affirm. counts. 552(b). section.” 5
A U.S.C. example, For § government attorney a protect FOIA, 5 U.S.C. Under verbatim witness statement from disclosure prepar- of four memoranda seeks disclosure (either under the FOIA or in discovery) civil attorneys while the FTC by government ed merely by including its text in a memorаn earlier suit for defending against an prepared dum in litigation. use Robbins by Mervin. That brought reinstatement NLRB, Tire & Rubber Co. v. to exhaust for failure suit was dismissed (5th 1977), rev’d on other remedies. grounds, U.S. an affidavit The FTC submitted L.Ed.2d see Bristol-Myers Co. v. attorneys, Randolph W. by one of its Smith 138 U.S.App.D.C. 42-44), general cert. describing the four memoranda ly (1970) (governmental L.Ed.2d 52 deliber exempt they are from disclo claiming that privilege).1 ative FOIA, exemption 5 sure under 552(b)(5). Exemption provides agree U.S.C. We need not agencies disclose and with the that it would not intra-agency memoran “inter-agency appropriate to sever factual material out which would not be availa dums or letters memoranda issue here. We than an party recently said, Central, other ble law in Mead Data Inc. v. *5 agency.” with .the The Su litigation Dep’t Force, United States of Air 184 U.S. has the civil dis preme 350, 242, Court said that App.D.C. (1977), 566 F.2d 256 that: applied “can be covery only rules Exemption five is intended to protect the by rough 5 Exemption way analogies.” of process government deliberative of and Mink, 827, 93 EPA v. 410 U.S. S.Ct. just not deliberative . material. Nevertheless, 835, (1973). 119 it 35 L.Ed.2d In some circumstances . . dis- at exemption is clear that 5 subsumes the closure of even purely factual material torney product privilege. NLRB v. work expose so may process the deliberative 154, Sears, Co., 132, 95 & Roebuck within an it agency that must be deemed 1504, 44 L.Ed.2d 29 As charac S.Ct. exempted by 552(b)(5). section 26(b)(3), the attor terized in Fed.R.Civ.P. example, For Corp. Montrose Chemical v. product ney privilege protects work Train, 270, 274-78, 160 U.S.App.D.C. 491 “against impres of the mental disclosure 63, 67-71 (1974), F.2d we held sum- certain conclusions, sions, legal opinions, theories of in an maries evidence representative attorney of an or other of a to be hearing non-severable. The summa- concerning the party litigation.” been prepared by ries had position appears evidence, be who Mervin’s to officers had heard the to that, may although parts of the memoranda assist head who charged exempt making work dis attorney product be from decision based on that evi- closure, is entitled to of those dence. To portions he disclosure disclose the factual documents, portions noted, which these memoranda contain we would disclose concerning statements fact his dismissal. which facts the administrator’s aides con- (b) provides important enough bring Subsection FOIA sidered to to his attention, “[a]ny reasonably segregable portion thereby exposing part of the de- shall provided any person process way contrary record be liberative in a to the requesting exemption such record after deletion of intent of 5 offi- are portions exempt among under this sub- cials be able to communicate them- may Brockway Force, Department 1. Even witness statements be See v. sometimes of the Air 1184, privileged attorney product, (8th 1975) (FOIA work 518 F.2d as exam- 1189-94 Cir. 5); Zuckert, ple, attorney exemption U.S.App. statements taken for an v. Machin 114 336, employees employer from its in the 316 cert. 375 course D.C. F.2d U.S. duties, confidentiality. (1963) (civil discovery). promise of their under a 896 1977). (4th Cf. Robbins concerning decisions in candor selves Tire, supra, in which the Fifth Circuit dis- Accord, Brockway, supra. yet made. tinguished Corp. Kent held certain Data, su- and Mead Chemical Montrose exemp- were not within witness statements concerning the in cases pra, illustrate tion 5. the dis- process governmental deliberative and “deliberа- “factual” tinction between suggests case dissent exemp- all not answer tive” material does be remanded should This case concerns questions. tion 5 government affidavits or for either further privilege. We be- attorney work-product inspection an in camera documents. between fac- demarcation that a strict lieve disagree. ordinarily We should con Courts (requiring material and deliberative tual examining the possibility docu sider helpful less former) is even disclosure in camera to determine whether the ments involving gov- is cases it here than exempt to be as material claimed process. ernmental deliberative work-product segregable cоntains factual portions. cases some pro important part what is An exemption is way properly to insure that attorney work- privilege tected inspection, In camera applied. attorney’s consideration product is the necessary not be cases.2 will in all See Taylor, Hickman of the facts. weighing Data, generally supra, U.S.App. Mead L.Ed. U.S. n.10, 369-70, at 358 & D.C. NLRB, Corp. Kent n.10, 260, 250 & 261-62. 920, 97 denied, 429 U.S. Cir.), (5th cert. (FOIA (1976) ex Our examination of the record in this 50 L.Ed.2d this, inspection indicates that in camera even the fac Because emption required. from Mr. Smith’s sworn affidavit segregated tual material Appellee, 42-44) App. some likely to reveal satisfies work-product is that, us strategic thoughts. the extent the dоcuments at attorney’s tactical *6 material, exempt pure issue contain factual it is inciden government cannot While the with, up tal to and by from call bound discussion of of fact disclosure statements we work-product, agree litigation strategy and the attorney deliberative ing them processes attorneys actively that preparing and Fifth Circuits the Fourth with attorney’s pending disclose an their defense for a lawsuit.3 Since might material the attorney evidence is the affidavit establishes that “factual” of factual appraisal by actually privileged attorney is exempted from disclosure material work-product NLRB, Corp. supra; work-product, inquiry v. further is not necess 5. Kent exemption Milliken, Irving, ary.4 Inc. Deering Roebuck, Sears, supra, quest Supreme for in disclosure was denied because the
2.
Court
Chemical, süpra,
segregable
in
and the
court Montrose
factual material was not
—it
Corp., supra,
work-product.
in Kent
Robbins
Fifth Circuit
Tire,
inspection
supra,
in camera
held that
interpretation
The dissent’s
is based on the
necessary
resolving
type
in
issues
the
District Court’s statement
that “once a docu-
here.
raised
product,
is
as work
even
ment
classified
factual
exempt
matters in the document
dis-
are
from
the
3.
describes
four docu-
The Smith affidavit
Corporation
closure under
the Act. Kent
documents
.
.
and then states:
“The
ments
NLRB,
([5th
1976).”
from the facts are only disclosure if availa shall bear proving the burden some requestor ble to the from other source. should be disclosed. Subsection Apparently so hold is Mor (g)(2)(A), requests concerning such as this Mathews, Products, ton-Norwich Inc. v. one to amend allegedly records, inaccurate (D.D.C.1976). It F.Supp. is not neces contains provision allocating no the burden sary for us to whether this rule consider proof. Legislative history reported apply generally. should cases It FOIA *7 light decisions question. also shed no on this hold, present suffices for the case to that in circumstances, these agree we policies with strong public view of the furthered the District Court that ordinary impos- the rule privilege work-produсt, the ing the burden on protected proof plaintiff be the part factual material as should apply. reviewing record, After attorney work-product it is we agree also reasonably requestor not available to the with the District Court that Mervin from another We note that could not source. meet burden. The judgment Supreme seg Court in Mink described the on Mervin his second regable portions requiring rule as disclosure cause of action is also affirmed. coming Court, litigation, then, . . an must . at 624. The District application segrega-
be able not doctrinal not to discuss theories unaware of information, bility requirement Exemption but also to sift “assemble [and] as the dis- Rather, impliеs. what be the relevant he considers to from the sent Court was feeling persuaded (as that, are) Kent, irrelevant facts” without that he is we like the factu- adversary working segregable for his at the same time. privi- al matters are not from the Taylor, leged Hickman v. U.S. at work-product. 67 S.Ct. feeling jus- . . The would be well tified if we allowed the FOIA to used to force materials. disclosure of such Regulations. 2. FTC
C discharge provi contends that his violated alleges final cause Mervin’s manual sions of the FTC administrative employment violat- FTC discharge from his rating plan for establishing performance a clause the Fifth process due ed both the portions regula- employees. The relevant personnel and FTC Amendment judg- portion manual, this affirm at the tions. We read time Mervin as well. ment as that an discharged, provided employee given “unsatisfactory” who was to be did Process. 1. Due .Mervin rating given a written notice of the must be appointment, and civil service not have a specific performance in his superiors. of his deficiencies pleasure served at con Therefore, property right to he had no which to days improve. least 90 cognizable employment tinued “unsatisfactory” rating 5-430.14. An Sindermann, Perry v. clause. process due basis, not the only permis constituted a but 599-603, 92 S.Ct. 408 U.S. basis, removing an employee sible from (1972).5 L.Ed.2d 570 position (although necessarily his from a of ac would, have cause He entirely, job FTC’s if employ another liberty, of his if infringement tion for found). which he suited could be was better were such as of his dismissal circumstances Finally, when a 5-430.21. reduction in his opportunities effectively foreclose would funds, to lack force was to be made due profes in his employment to obtain future employees all affected “unsatisfac Roth, Regents sion. Board of tory” ratings must be before terminated 564, 573-74, 33 L.Ed.2d any 5-430.22. for Appel others. § one; high (1972). fairly The standard lee, App. 62-70). general public em not sit as the courts do boards. Dismissal review ployee grievance not indicate record does that Mervin more, might without employment, from “unsatisfаctory” ever received an rating un- job diffi search for new well make the this chapter der administrative man- process is not in itself a due cult. But this ual. notice of termination which was Treusdell, 183 U.S. Mazaleski violation. sent to him on December stated 190-96, App.D.C. being discharged that he was because of a appears from record It (R. lack of funds 9 at In a letter of to Mervin’s FTC communicated officials February 16,1973 to the Civil Service Com- their belief that he employers prospective (CSC), mission which was investigating perform efficiently adequately did not Mervin’s the Executive Director Comparing this case his at the FTC. duties FTC that Mervin was not discharged stated many cited cases to Mazаleski and as a reduction in force due to lack 714), F.2d at we (id. at therein funds. The letter that he states was actual- the District Court was correct conclude that ly management terminated “because of- liberty holding Mervin’s interest ficials of were infringed by the FTC.6 committed to reputation argue liberty more is not a FTC adminis- without 5. Mervin does not infra, manual, upon property protected process *8 discussed conferred interest trative due clause, employ- “property” specifically distinguished in interest continued him a but the situa- process protected due employment under the clause. ment tion where termination Treusdell, U.S.App.D.C. 701, See Mazaleski v. also at stake. Id. at 96 S.Ct. The 1155. 701, 182, n.23, n.23 Roth, 709-10 supra, 190-91 stating Paul court discussed issue, deciding in refrain from this We employer an who contrast defamed an em- portion view this of our conclusion ployee payroll subject still on the would not be reasons. Mervin’s case is barred other 710, process to due action. Id. at 96 S.Ct. appears It therefore that Paul and Roth concluded that Paul 6. The District Court consistently can be read with one another. But Davis, L.Ed.2d 424 U.S. any prov- in Mervin event we hold that has not (1976), We barred this cause of action. progeny. en his Roth and its case under Paul, reading question held that this which Commission, in efficiently.’ complaint making operate more in this funds, the letter against about lack of the FTC. But nоthing in the statement given to said, inaccurate and had been presented record indicates he ever this (Brief Ap- spare feelings his Therefore, to theory judicial to the FTC. re 31). App. at pellee, point appropriate, view at this is not Court correctly dismissed the theory this has two grievance on Mervin’s complaint as it theory. insofar relied on this First, the reason he contends that aspects. is, course, This disposition preju without discharge which was communicated for his attempt pursue dice to to an administrative employ- prospective and to his to the CSC time, judicial remedies at this seek re and effi- adequately he could not ers—that thereaftеr, subject view to whatever barri perform his duties—is tantamount ciently may presented by ers the statute substance, “unsatisfactory” rating an to limitations at late date.7 Therefore, argues, the in form. he if not in its procedures be held to the FTC must Whatever the FTC’s actual reasons for imposition manual administrative Mervin, discharging he have been enti- “unsatisfactory” ratings, procedures tled to be treated as discharge his opportunity notice and an to im- include force, were aof reduction in because FTC undisputed It is that the did prove. given was the reason to him at the Mervin’s procedures those not follow so, time. If Mervin should have been dis- case. charged only if at the discharge time of the to permitted cannot be exalt An no competing employees with “unsatisfac- employee deny form over substance and an tory” ratings were retained in the area for an procedural safeguards required FTC work where efficiency increased “unsatisfactory” rating, by dis merely Manual, 5-430.22, Admin. needed. FTC § is, in every him for a reason that charging supra. The record does not reveal whether name, “unsatisfactory” rating. but an thing any there such employees. were If we so agency’s its own obligation to follow treated the this would be a material rights rules exists procedural protect to requiring issue of fact reversal of the sum- of those such as Mеrvin who deal with the mary judgment. agency. obligation Therefore it is an to argument, At oral Mervin also to referred spirit their letter.
follow as well as their 351.601, regulation 5 C.F.R. of the CSC § Ward, Thomas v. 96 U.S.App.D.C. See required which he also alleged employ- (1955) J., (Bazelon, “unsatisfactory” ratings ees with be dis- concurring), cert. charged first. Davis, 100 L.Ed. K. Seventies, Law Administrative hold that it is too late in We (Supp.1977). 5.03-5 any to obtain relief day for Mervin on theories, assuming these we would find appears, It that Mervin has nev- attempted Shortly them meritorious. after his dis pursue er to administrative rem- a civil respect charge, he filed the District appar- edies this claim. He learned of the Court reinstatement. Mervin ently referring seeking letter to inef- ficiency (D.D.C., while attempting pursue April ad- Civ. No. filed appeal before January ministrative the Civil Service the action was On He included it in prejudice Commission. his District dismissed without for failure complaint against Civil Service exhaust remedies. We af- inefficiency early basic statute 7. The of limitations claims learned 1973 that had been government, firing; six-year period the federal 28 U.S.C. a reason if the for his 2401(a), prompt bars actions not filed “within six that date a measured from suit would *9 years right stage pro- after the of action first accrues.” If not At this be time-barred. unnecessary ceedings, claim of “accrued” at the time Mervin’s it is for us to decide this early 1971, discharge аppear question. in to would hand, apparently the other barred. On Mervin 830 dismissal, (2d 1974).8 148, at 621-22 ed. In the U.S.App.D.C. 160 10.405[1]
firmed that (required by statement of related cases our (1974), and certiorari was 1272 8(b)) present in his brief the 930, 2640, local rule 94 41 S.Ct. “The pending Mervin case Meanwhile, stated (1974). Mervin at- L.Ed.2d 233 before this Court under the previously administrative remedies. tempted pursue to title, We agree same No. 73-1330.” the for relief. The CSC petitioned CSC He his characterization. appeal untimely of the as dismissed 28-29). thereup- Mervin present defendant is The fact the asking mandatory a in- sued the CSC on FTC, while in one of the the defendant junction directing it to consider the merits CSC, prior prevent was the does not cases Mеrvin appeal. his v. United States Civil judicata application principle res Comm’n, (D.D.C., Civ. No. 74-1297 Service case. “There is judgment to in that 1975, 29, 1974). 16, On June Aug. filed the same privity between officers case for Judge dismissed the failure Sirica judgment so in a suit that a to state a claim. representative of the party between a and a relitigation is judicata res United States attempted appeal In the party same issue between that suits, prior pro- two and these civil government.” another officer of the Sun- theory ceeded that he had been on Adkins, Co. 310 shine Anthracite Coal discharged from Federal Trade Com- 402-03, 60 84 L.Ed. U.S. part mission as of a force. He reduction Accord, River Inc. v. (1940). Valley, 1263 prior regulation pro- cited the in these CSC (8th County, F.2d 582 Cir. Dubuque 507 ceedings, not the of the FTC provisions but Co., 1974); v. Willard Tablet United States (R. administrative manual (7th 1944); Second Nat’l F.2d Therefore it is clear that in his first two Woodworth, Saginaw Bank of lawsuits, pursuing he was the same cause of Comment, (E.D.Mich.1931). See action, dismissal, involving the same as he is In- Res Judicata and Intra-Governmental seeking in the suit: present reinstatement consistencies, L.Rev. 653- Columbia allegedly improper pro- because of dismissal was involved in CSC Principles judicata prevent cedures. of res regula- prior only because statutes and relitigation grounds on the or theo- tions establish it the forum for adminis- as advanced, actually riеs but also on those appeals by trative terminated which could have been advanced in pri- pursuing the same employees. Mervin litigation. or Restatement of Judgments in force” issue he advances here. “reduction (Second) Restatement §§ Judgments (Tent.Draft 61.1 prior §§ No. We are aware that court deci- 1973); IB Moore’s Federal Practice the merits of Mervin’s sions did address unit, proposed 8. The rule is stated thus in the trial their treat- convenient whether Judgments: parties’ Second Restatement of unit ex- ment as a conforms pectations understanding or business or us- purposes 61. Dimensions § of “Claim” age. Merger Concerning or Rule Bar —General (Second) Judgments (Tent. “Splitting” Restatement 61§ 1, 1973). (1) judgment Draft No. When valid a and final ren- Exemplifications extinguishes plaintiff’s 61.1. Rule § dered in an General Concerning pursuant merger Splitting claim to the rules of or bar extinguished applies extinguish the claim all The rule of a includes rights plaintiff plaintiff against remedies claim the defendant respect any plaintiff defendant with or prepared to all in the transaction, or trans- series of connected second action actions, out of (a) present grounds which the action arose. To evidence or or theo- (2) grouping factual What constitutes a presented ries of the case not first in the “transaction”, groupings action, what constitute or “series”, pragmatical- are to be determined (b) seek or To remedies forms of relief not ly, weight giving as to such considerations demanded in action. the first time, space, the facts whether are related Id. 61.1. origin, motivation, whether form
831
However,
the records of the
decisions of
contentions.
this circuit have clearly
Mervin,
attorney,
cases reveal that
an
prior
established that nonexempt portions of an
begin by seeking judi
consciously chose to
otherwise exempt document must be dis
remedies,
cial rather
than administrative
closed unless
are “inextricably inter
and did not first seek administrative relief
with exempt portions.”
twined
Mead Data
put
until several months after he was
оn Central, Inc. v. United
Dep’t of Air
States
proper
notice that
that was the
course of Force,
350, 368,
184 U.S.App.D.C.
566 F.2d
28-29).
242,
(1977); accord,
260
Washington Re
His suit
the Civil Service Commis
Project,
HEW,
search
Inc. Dept.
v.
164
sion was dismissed under Fed.R.Civ.P.
169, 180,
U.S.App.D.C.
238,
504 F.2d
12(b)(6)
claim,
for failure to state a
he
since
(1974);
Bristol-Myers 138 U.S.App.
sought
beyond
power
relief which was
935,
D.C.
424 F.2d
939 cert.
give.
adjudication
CSC
This is an
824,
46,
case failed segregat- these documents could be
terial in revealing thought the attorneys’
ed without fur- I would remand for either
processes, *12 camera affidavits or in
ther of the documents.
inspection of America
UNITED STATES POWE, “Kim,” Appellant. a/k/a
Kim L.
No. 77-1172. Appeals,
United States Court
District of Columbia Circuit.
Argued Sept. 1977.
Decided Nov. 1978.
As Amended Nov. 19, 1979.
Rehearing Denied Jan. present In the alleged n.23. the district court nor established that factual material apparently application segregated unaware could not be and disclosed without segregability requirement Exemp- revealing thought processes of the attor- neys. and the affidavit neither tion