450 F2d 342 Commercial Envelope Manufacturing Co v. Securities and Exchange Commission

450 F.2d 342

Fed. Sec. L. Rep. P 93,266
Kristel, Petitioners,

No. 191, Docket 71-1171.

United States Court of Appeals,
Second Circuit.

Argued Oct. 26, 1971.
Decided Oct. 29, 1971.

Jay J. Miller, New York City (Stephen S. Bernstein, Sol I. Sokolsky, McLaughlin & Stern, Ballen & Miller, New York City, on the brief), for petitioner.

C. Bradford Cook, David Ferber, Richard E. Nathan, Kathryn B. McGrath, Securities and Exchange Commission, on the brief, for respondent.

Before LUMBARD, HAYS and OAKES, Circuit Judges.


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Petitioner seeks to obtain from respondent Securities and Exchange Commission a copy of a letter allegedly sent to the Commission by a third party and alleged to be libelous and to have been sent to the Commission with the intention of influencing the Commission to withhold approval of petitioner's registration statement and thus to frustrate petitioner's proposed plan for financing its operations. Petitioner alleges that he needs the statement because he wishes to sue in the courts of New York for the libel, and in order to state a cause of action for libel under New York law a complaint must set forth verbatim the allegedly libelous statement. The Commission denied petitioner's request for a copy of the document on the ground that the material fell within two exceptions to the Freedom of Information Act, 5 U.S.C. Sec. 552(b) (4) and (7) (1970). Petitioner seeks review of the Commission's denial of his request, citing Section 9 of the Securities Act of 1933, 15 U.S.C. Sec. 77i (1970) as giving this court jurisdiction to review such an "order."


We grant the Commission's motion to dismiss the petition. The Commission's action was not an order subject to review under Section 9. The Commission's staff has informally reviewed petitioner's registration statement, and this petition is in no way related to that administrative action. The refusal of petitioner's request was not connected with any investigation or proceeding of the Commission and was not the type of order issued by the Commission in the usual course of its activities. If refusal was wrongful it was because of failure to comply with the Freedom of Information Act, 5 U.S.C. Sec. 552(a) (1970). That statute specifically provides that a refusal to disclose information such as petitioner claims is involved here is reviewable in a district court, not in a court of appeals. 5 U.S.C. Sec. 552(a) (3) (1970). The motion to dismiss for lack of jurisdiction is granted.