Lovell v. Alderete

630 F.2d 428

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 14, 1980
• Docket: Nos. 79-2207, 79-2718
• Status: Published

Opinions

FRANK M. JOHNSON, Jr., Circuit Judge:

This is a consolidated appeal from the district court’s orders in two separate actions brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552, (1976) [FOIA] and the Privacy Act, 5 U.S.C. § 552a (1976) [PA]. The district court dismissed both actions for mootness and denied plaintiff’s request for disciplinary action, damages, and attorney’s fees under the Acts.

I. FACTS

In the first case (79-2207), Frank D. Lovell, an inmate of the Atlanta Federal Penitentiary, sought a copy of his eyeglass prescription from the prison’s medical staff. His request was denied by the chief medical officer. Lovell appealed the denial of his request to the Bureau of Prisons Regional Office which also denied the request on the basis of an exemption for inmate health records. After making further non-productive inquiries, Lovell filed suit in the Northern District of Georgia. He sought release of the prescription under the FOIA, a 60-days’ suspension of the defendants from employment, $10,000 in damages, and reasonable attorney’s fees and court costs [Lovell I].

The Government responded to the complaint by releasing the requested prescription pursuant to a change in the United States Attorney General’s guidelines concerning exemptions. Both parties filed summary judgment motions; the district court disposed of the motions by dismissing the case as moot since the document requested had been released. The court disallowed plaintiff’s claims for costs as he had proceeded in forma pauperis. Further, the court ruled that Lovell was not entitled to recover attorney’s fees since he had proceeded pro se. After applying the four-part test of Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978), the court concluded that, even if pro se litigants were entitled to attorney’s fees, Lovell could not recover fees under the circumstances of this case, especially since there was no showing of malice or bad faith. The lower court declared the remainder of the suit moot.

In the second case (79-2718), Lovell directed to the Bureau of Prisons a request for a copy of an investigative report on the Atlanta Federal Penitentiary and any of his parole recommendation reports submitted by a judge or a United States Attorney. After the Bureau denied these requests, Lovell made further non-productive inquiries. He initially filed this action in the District of Columbia and it was subsequently transferred to the Northern District of Georgia [Lovell II].

Again, relying on the United States Attorney General’s new guidelines, the Government released a copy of the Atlanta prison report approximately four months after the initial request. However, the other information requested was not released at that time. The Government filed a motion for summary judgment in which an affidavit erroneously stated that all of the requested information had been released.

The district court dismissed Lovell II for mootness on the basis of the Government’s affidavit. Inexplicably, the court never received Lovell’s opposition motion. In denying Lovell’s request for attorney’s fees the court referred to its opinion in Lovell I (which was decided on the same day) and plaintiff’s pro se status; however, the court failed to directly apply Blue to the facts of Lovell II.

Lovell moved to reconsider the case since his request for the parole recommendation forms still had not been met. The court denied this motion in light of the Government’s subsequent release of the requested forms. Lovell currently has all of the documents he requested.

Lovell contends on appeal that the court erred in dismissing both cases for mootness and by failing to consider the remaining issues of disciplinary action and damages. His main contention on appeal concerns the district court’s failure to award him, a pro se litigant, attorney’s fees in either suit under the FOIA and PA provisions. We affirm in both cases.

II. DISMISSAL OF THE ACTIONS

The record clearly shows that Lovell has received all of the information he sought in Lovell I. Even though the information he sought in Lovell II was delivered late, Lovell now has all of the information he requested in that case. The district court correctly dismissed both actions for mootness to the extent that documents were sought. Carr v. Saucier, 582 F.2d 14, 15 (5th Cir. 1978).

We also find that the court was correct in dismissing Lovell’s request for disciplinary action and damages pursuant to the FOIA § 552(a)(4)(F) and the PA § 552a(g)(4)(A). However, this request was properly denied because of the failure to meet certain requirements rather than the mootness of the request. Those sections require that, before disciplinary action can be taken or damages can be awarded, it is necessary that the court (1) order production of improperly withheld documents (2) assess attorney’s fees and other litigation costs against the Government and (3) issue a written finding that the agency personnel may have acted arbitrarily and capriciously. 5 U.S.C. § 552(a)(4)(F) (1976); 5 U.S.C. § 552a(g)(4)(A) (1976). The court took none of these required actions; in fact the court found no showing of malice or bad faith. Our examination of the record reveals no basis for a finding of malice or bad faith. Accordingly, we find Lovell’s claims for disciplinary action and damages are without foundation or merit. See, generally, K. Davis, 1 Administrative Law Treatise, § 5:22 (2d ed. 1978).

Even though Lovell’s suits were mooted by the production of the requested documents, mootness does not automatically preclude an award of attorney’s fees. Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977); cf. Doe v. Marshall, 622 F.2d 118 at 119 (5th Cir. 1980). We will now examine the issue of attorney’s fees in some detail.

III. ATTORNEY’S FEES

The issue of whether a pro se litigant may recover attorney’s fees against the Government in an action brought pursuant to the FOIA and PA is one of first impression in this Court. However, since our recent decision in Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978), disposes of Lovell’s claims, we need not answer the broader question of whether a pro se litigant is ever entitled to recover attorney’s fees in a FOIA or PA case.¹ We agree with the district court that, even assuming pro se litigants in some cases may be entitled to an award under these Acts, Lovell would still not recover attorney’s fees under the circumstances in these cases.

It is clear that an attorney’s fees award under the FOIA or PA is discretionary rather than presumptive as in civil rights cases. Blue v. Bureau of Prisons, supra, 570 F.2d at 533. Congress enumerated four criteria that courts are to view as flexible guidelines and are to evaluate in light of the fundamental legislative policies underlying the Acts. Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 710-716 (D.C.Cir. 1977).² Once a plaintiff has substantially prevailed and thus become eligible for an award of attorney’s fees, a court should determine whether the plaintiff is entitled to the award in light of these criteria:

(1) The benefit to the public deriving from the case;

(2) the commercial benefit to the complainant;

(3) the nature of the complainant’s interest in the records sought; and

(4) whether the government’s withholding of the records sought had a reasonable basis in law.

Blue v. Bureau of Prisons, supra, 570 F.2d at 533. Additionally, the court may consider any relevant equitable factors that may affect its balancing of the criteria above. Id. at 533.

Lovell argues that, since the Government has released all of the information he requested, he has “substantially prevailed” for the purposes of § 552(a)(4)(E) and § 552a(g)(3)(B) and he is eligible for an attorney’s fees award. The mere fact that the information sought was not released until after the suit was instituted without more is insufficient to establish that Lovell “substantially prevailed” in either of his suits.³ Cox v. United States Dept. of Justice, supra, 601 F.2d at 6. Absent a court order in his favor, plaintiff must show that prosecution of the action could reasonably be regarded as necessary to obtain the information and that the action had a substantive causative effect on the delivery of the information. Id. at 6, citing Vermont Low Income Advocacy Council, Inc. v. Usery, supra, 546 F.2d at 514.

We doubt that Lovell has met the standard set out in Cox since the Government’s compliance with his request was not caused mainly by the institution of the suit, but rather was also affected by a change in the United States Attorney General’s guidelines concerning disclosure of exempted materials.⁴ But even if we assume arguendo (as did the district court) that Lovell had substantially prevailed within the meaning of the Acts, he is still not entitled to an award since he fails to meet the criteria in Blue. We now apply those criteria to these appeals.

A. Lovell I

The district court applied the tests in Blue to this action and held that Lovell was not entitled to attorney’s fees. The court found that the disclosure of Lovell’s eyeglass prescription under the first criterion served no public benefit; that under the second and third criteria⁵ plaintiff’s interest was not commercial, but it was a personal health benefit; and that under the fourth criterion the Government had a reasonable basis in law for its denial. Further, the court declined to penalize the Bureau for its voluntary compliance with the plaintiff’s request. Given these circumstances, and the absence of a showing of malice or bad faith, the court denied Lovell’s request for attorney’s fees. We agree.

(1) Public Benefit

The disclosure of Lovell’s eyeglass prescription is a matter of private concern: the “public benefit” factor has not been used to subsidize a private matter such as the one involved here. Blue v. Bureau of Prisons, supra, 570 F.2d at 533-34. This disclosure will in no way add to the fund of knowledge citizens use when making vital political choices. Id. at 534.

(2) Commercial Benefit to Complainant and

(3) The Nature of his Interest in the Records Sought

The plaintiff clearly would receive no commercial benefit in the disclosure which is a factor in his favor.⁶ See, e. g., Chamberlain v. Kurtz, 589 F.2d 827, 842 (5th Cir. 1979) (commercial benefit clear since plaintiff faced possible $1.8 million deficiency claim). However, Lovell’s interest in his prescription is a wholly personal one. While we will not say it was of a “frivolous nature,” it clearly is not “scholarly or journalistic or public-interest oriented.” Nationwide Building Maintenance, Inc. v. Sampson, supra, 559 F.2d at 712.

(4) Basis for Government’s Withholding

The Government initially claimed that Lovell’s prescription as a prisoner’s health record was exempt from disclosure under 28 C.F.R. 16.97(a)(6) (1979). See 5 U.S.C. § 552(b)(3) (1976).⁷ It released the prescription after the United States Attorney General changed the policy governing exemptions. The record does not reveal that the “withholding appeared to be merely to avoid embarrassment or to frustrate the requester.” Nationwide Building Maintenance, Inc. v. Sampson, supra, 559 F.2d at 712. Accordingly, we find that the withholding was not clearly unreasonable.

Since none of the four criteria nor any other relevant factors tip the balance in Lovell’s favor, we hold. that the district court did not abuse its discretion in denying an attorney’s fees award to Lovell.

B. Lovell II

The district court denied Lovell’s request for attorney’s fees, citing its opinion in Lovell I which was decided on the same day. While Lovell I clearly utilized Blue’s four-part test, the district court more properly should have directly applied Blue to this action. However, such error was harmless since our application of the Blue test reveals that the district court was correct in its denial of attorney’s fees. Cf. Rabalais v. Dresser Industries, Inc., 566 F.2d 518, 519 (5th Cir. 1978).

Lovell made two distinct requests for information: one was for his parole recommendation file and the second was for an investigative report on the Atlanta prison. His parole recommendation file if disclosed would serve no discernible public benefit⁸ and is essentially a private matter. Blue v. Bureau of Prisons, supra, 570 F.2d at 533.

The second request would appear to have some public benefit. However, when we weigh the degree of dissemination and likely public impact of this report, we cannot conclude that this factor of public benefit would justify an assessment of fees against the government, especially since it released the report within a few months of Lovell’s request.

(2) Commercial Benefit and

(3) The Nature of his Interest in the Records Sought

Again, it is apparent that Lovell would receive no commercial benefit from the disclosure of the documents sought in either of the two requests. Thus this factor points in plaintiff’s favor.

But it is also clear that Lovell’s interest in both reports is a personal one;⁹ nor would it seem that his interest is scholarly or public-interest oriented. Nationwide Building Maintenance, Inc. v. Sampson, supra, 559 F.2d at 712. This factor does not point in Lovell’s favor.

Since both .documents requested by Lovell arguably fall within an exemption to the FOIA, we cannot say the withholding had no reasonable basis in law. See 5 U.S.C. § 551(1)(B) (1976); 5 U.S.C. § 552(b)(7) (1976); 5 U.S.C. § 552a(j) (1976). Lovell asked the prison for any parole recommendation report filed by a judge or a United States Attorney in a March 1978 letter. The parole recommendation report prepared by the sentencing district court judge (Form 235) constitutes a court report and thus is exempt from disclosure.¹⁰ The other form requested is prepared by the United States Attorney’s Office (Form 792) and may be exempted from disclosure under 18 U.S.C. § 4208(c) (1976). See 5 U.S.C. § 552(b)(3) (1976), quoted at note 7 supra. The report on the Atlanta prison on its face would appear to fall under the exemption for “investigatory records compiled for law enforcement purposes” 5 U.S.C. § 552(b)(7) (1976); 5 U.S.C. § 552a(k)(2) (1976); however, if the report were still in dispute, the remaining conditions under § 552(b)(7) would require examination to see if the report was in fact exempt. Accord: Environmental Protection Agency v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 838, 35 L.Ed.2d 119 (1973). However, this examination is unnecessary here since Lovell did receive both the report on the prison and the only form (Form 792) in his parole recommendation file.

We have weighed each of the four criteria and have concluded that the court properly acted within its discretion in denying Lovell’s request for attorney’s fees in this action.

Both cases are AFFIRMED.

1 . Compare Cox v. U. S. Dept. of Justice, 601 F.2d 1 (D.C.Cir.1979); Marshner v. U. S. Dept. of State, 470 F.Supp. 196 (D.Conn.1979) with Burke v. U. S. Dept. of Justice, 559 F.2d 1182 (10th Cir. 1977); Barrett v. U. S. Customs Service, etc., 482 F.Supp. 779 (E.D.La.1980).

2 . The central purpose of the FOIA is openness in government to assist citizens in making informed choices so vital to a popular form of government. Blue v. Bureau of Prisons, supra, 570 F.2d at 533, citing S.Rep.No. 854, 93d Cong., 2d Sess. 2 (1974). The main purpose of the PA is to forbid disclosure unless such disclosure is required by the FOIA. 5 U.S.C. § 552a(b)(2) (1976). Both Acts have identical attorney’s fees provisions:

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. 5 U.S.C. § 552(a)(4)(E) (1976); 5 U.S.C. § 552a(g)(3)(B) (1976).

The purpose of this section was to remove the often insurmountable financial barriers the average citizen faced when attempting to force governmental compliance with these Acts, not to provide an award to any plaintiff who successfully forced the government to disclose the requested information. Nationwide Building Maintenance, Inc. v. Sampson, supra, 559 F.2d at 711.

3 . On the other hand, it has been established that in order to substantially prevail, a plaintiff need not receive a court judgment in his favor if his action helped induce disclosure. Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976).

4 . The Attorney General of the United States wrote to all agencies to say that: “The government should not withhold documents unless it is important to the public interest to do so, even if there is some arguable legal basis for the withholding,” and that “the Justice Department will defend Freedom of Information Act suits only when disclosure is demonstrably harmful, even if the documents fall within the exemptions in the Act.” 123 Cong.Rec.S. 7763 (May 7, 1977); K. Davis, 1 Administrative Law Treatise, § 5:1 (2d ed. Supp. 1980).

5 . These two tests are often considered together. “It seems logical to read these criteria together when a private plaintiff has pursued a private interest.” Werner-Continental, Inc. v. Farkas, 478 F.Supp. 815, 817 (S.D. Ohio 1979).

6 . The fees award section was intended to encourage complainants who lacked substantial private and pecuniary incentive to pursue their claims. If the potential for private commercial benefit is high, such complainants have sufficient incentive to pursue their claims thus meeting the policy objectives of § 552(a)(4)(E); in such situations a court may properly deny an award of fees. Cuneo v. Rumsfeld, supra, 553 F.2d at 1368. Lovell lacks a substantial commercial incentive.

7 . This subsection of the FOIA allows an exemption when another statute creates an exemption “provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3) (1976).

8 . In fact, if such a file contained names of confidential sources, such disclosure could have a negative impact. See Smith v. Flaherty, 465 F.Supp. 815 (M.D.Pa.1978).

9 . The reason why Lovell wants the report on the prison is not particularly relevant in a FOIA case. FOIA was designed to help “any person" to receive information from the government. “Any person” includes prisoners. See K. Davis, 1 Administrative Law Treatise § 5:7 (2d ed. 1978).

10 . Courts do not fall within the reach of the FOIA. 5 U.S.C. § 551(1)(B) (1976); see Smith v. Flaherty, supra, 465 F.Supp. at 819. The parole recommendation file did not contain a Form 235.