709 F.2d 1051 | 5th Cir. | 1983
Lead Opinion
Mary Williams Cazalas appeals from the district court’s denial of an award of attorney fees under Freedom of Information Act (“FOIA”)
The government failed to comply in a timely manner with appellant’s request for documents under the FOIA and PA. Caza-las was forced to file an Order to Show Cause in federal district court to acquire the materials. Appellees took longer than a year before complying fully with appellant’s request. We held on a previous appeal that appellant “substantially prevailed” in her suit to compel production of the documents and remanded to the district court to determine appellant’s entitlement to attorney fees under the standards set forth in Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir.1979) and Lovell v. Alderete, 630 F.2d 428 (5th Cir.1980).
The two criteria of the commercial benefit to appellant and the nature of her interest in the records sought are similar enough that it is useful to consider them together.
We agree with appellant that she would receive no commercial benefit of the type Congress indicated would be inappropriate to encourage by attorney fees. See Senate Report No. 93-854 at 19. Commercial profit pursued by a business firm seeking trade information must be carefully distinguished from the type of benefit appellant would receive if the information sought proved her discrimination claims. While appellant’s eventual reinstatement would result in a personal and possibly a pecuniary benefit, thus undoubtedly providing some incentive for her to bring the FOIA complaint, the information sought would not provide the type of commercial profit that Congress indicated is undeserving of special protection. Appellant’s receipt of some pecuniary benefit from a back pay award, see 42 U.S.C. § 2000e-5(g) (back pay and equitable relief in an EEO award), is not inconsistent with a broader public benefit being served by the production of the documents here sought. We believe such broader purpose exists in this case, so we find that these factors weigh in favor of a fee award.
Even were we inclined to find the absence of a broader public benefit resulting from the production of the documents, these two factors would still weigh in appellant’s favor because of the government’s recalcitrance in complying with her request.
The private self-interest motive of, and often pecuniary benefit to, the complainant will be sufficient to insure the vindication of the rights given in the FOIA. The court should not ordinarily award fees under this situation unless the government officials have been recalcitrant in their opposition to a valid claim or have been otherwise engaged in obdurate behavior.
Senate Report No. 93-854 at 19 (emphasis added).
(c) Basis in law for withholding documents
This Court found, on the previous appeal of this case, that the government withheld significant documents until after appellant
Upon the trial of this case, the district court found that “it seems unlikely that the Department’s refusal to release the documents had a reasonable basis.” Appel-lees argue, however, that this factor hardly outweighs the other three Blue criteria, all of which the government claims militate against a fee award. In the alternative, appellees attempt to claim the applicability of FOIA exemption five to the document sought. 5 U.S.C. § 552(b)(5). This exemption applies to, “inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency.” Materials involving the deliberative process may not be withheld if they would be discoverable in private litigation. Such materials are exempt to protect the consultative functions of government by furthering open and frank discussion within and between agencies of proposed administrative actions. See Cooper v. Department of Navy, 558 F.2d 274, 277 (5th Cir.1977). The Supreme Court thus recognized that, while different treatment must be accorded materials reflecting deliberative policy-making processes than is accorded purely factual, investigative materials, exemption five must be delimited, “as narrowly as consistent with efficient government operation.” Environmental Protection Agency v. Mink, 410 U.S. 73, 89, 93 S.Ct. 827, 837, 35 L.Ed.2d 119 (1973), quoting Senate Report No. 813, 89th Cong., 1st Sess., 9 (1965) and House of Representatives Report No. 1497, 89th Cong., 2d Sess., 10 (1966).
On the basis of these principles, we fail to see how the appellees’ withholding of the documents requested by appellant is supported by even a colorable basis in law. Rather, the material sought was discoverable in private litigation as well as under the FOIA. The documents concern investigative facts forming the basis for a personnel decision and do not encompass assessments of a policy nature. Appellant’s request should have been met promptly and in full. This factor also weighs in favor of an award of attorney fees.
Since all of the Blue criteria weigh in favor of an award of attorney fees, we next proceed to examine the appropriateness of such an award where appellant represented herself in the FOIA proceedings.
2. Fee Award to Attorney Proceeding Pro Se
We now confront an issue of first impression in this Circuit, namely whether an attorney litigant proceeding pro se is entitled to an award of attorney fees under the FOIA. This Circuit held in Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir.1981), that the FOIA precludes an award of attorney fees to a pro se litigant who is not an attorney. The Court explicitly left open the question of whether an attorney proceeding pro se is entitled to such fees.
Our fellow circuits have not come to a definitive resolution of this issue. The District of Columbia Circuit has granted attorney fees to attorneys representing themselves in FOIA cases, Cuneo v. Rumsfeld,
The district court was faced with the issue of whether appellant is entitled to attorney fees under the criteria for FOIA suits of Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C.Cir.1977), as adopted by this Circuit in Blue, Lovell, and Chamberlain v. Kurtz, 589 F.2d 827, 842 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979). Under these criteria, a court must consider: (a) the benefit to the public from disclosing the requested information; (b) the commercial benefit to the complainant; (c) the nature of the complainant’s interest in the records sought; and (d) whether the government had a reasonable basis in law for withholding the records sought. We now turn to an analysis of each of these factors.
(a) Benefit to public
Appellant contends that the documents sought reveal a conspiracy to propagate a policy of sex discrimination by high public officials. She claims that the request for documents revealing the reasons for her dismissal resulted in a change in the method of firing non-veteran Assistant United States Attorneys by according them notice and a hearing, rights to which they previously had not been entitled. In addition, appellant urges that the disclosed documents reveal information helpful to the public in evaluating the wisdom of the political appointments of John Volz as United States Attorney and Michaelle Pitard Wynn, formerly an Assistant United States Attorney, as a United States Magistrate. The government responds by noting that appellant sought documents relating solely to her own employment and not to sex discrimination in the Justice Department in general; thus, appellees argue, appellant’s FOIA request had little to do with increasing the fund of public information available for making political decisions. Appellees claim that the FOIA request was merely a substitute for discovery in the substantive Title VII litigation, and thus was not consistent with the policy of open government underlying the FOIA. See Senate Report No. 93-854, 93rd Cong., 2d Sess. 19 (1974 FOIA Amendments).
It is undisputed that appellant’s FOIA complaint requested information to rebut the allegations against her and to avoid litigation by resolving administratively the Title VII charge then filed with the Equal Employment Opportunity Commission. However, an acknowledgment of appellant’s strong personal interest in securing certain letters and notes is not necessarily inconsistent with an equally strong public interest in also receiving these items. This public impact goes beyond any public benefit derived solely from assuring government compliance with the provisions of the FOIA. Surely it is in the “public interest” to discover, if true, that the Department of Justice is less than entirely just in its dealings. In addition, it is inaccurate to assert that appellant merely sought to use the FOIA process as a substitute means of discovery in her Title VII action. Appellant’s FOIA request was filed after she brought an EEO complaint but well before filing a federal district court employment discrimination action. Moreover, appellant still faced important stages of administrative process before she filed her suit, most notably a meeting in Washington, D.C., with Acting Director William Tyson of the Executive Office for United States Attorneys on March 7, 1979. These facts suggest that it is a mischaracterization to regard appellant’s request solely as a substitute for discovery in the underlying substantive discrimination action.
On the basis of the above discussion, we conclude that this criterion weighs in favor of awarding attorney fees. The public interest in open access to government is well illustrated by this case; if decisions of the Department of Justice on internal matters are shown to be premised on less than total justice but instead are based on an impermissible factor such as gender, it would be
Appellees forward five arguments counseling against an award of attorney fees in these circumstances. These arguments are unavailing. First, appellees urge that the policy of access to government records is not forwarded by an award since an attorney proceeding pro se will not have out-of-pocket legal expenses that will deter him or her from pursuing an FOIA action in the courts. Appellees argue, in this regard, that the fee award would amount to a punishment against the government because appellant has not incurred any com-pensable expenses. Appellant amply demonstrated the costs she incurred, both from other work foregone and in terms of personal energy, due to her pro se work. She incurred precisely the sort of expenses that might deter a less determined litigant. Thus, the use of the word “incurred” in the statute is not determinative one way or the other. Also, the award is not a punishment in the sense of being a windfall for appellant, but amounts to a punishment only to the extent that the government should be reprimanded for unreasonably failing to comply with its own governing laws.
Second, appellees reason that the statute is designed to encourage litigants to consult with objective attorneys so as to avoid unnecessary litigation. A pro se attorney, while perhaps possessing the necessary skills to pursue a claim, may lack the requisite objectivity. We find little evidence to support appellees’ assertion that the purpose of the fee provision is to insure objective representation by an attorney. On the contrary, the fee provision is designed to promote vigorous advocacy on behalf of citizens seeking government information so that the government will be unable to escape from rightful compliance with the FOIA. See S.Rep. No. 93-854 at 17-19. Citizens are more likely to be successful in obtaining desired documents in the face of government intransigence when they have secured the services of one trained in the art of advocacy. Appellant provided precisely the type of determined representation Congress sought to make available to all FOIA litigants meeting the Blue criteria.
Appellees’ third argument is that attorneys will abuse the FOIA by bringing litigation solely to generate fees for themselves. There is little reason to suspect that awards of attorney fees to pro se attorney litigants will be a source of abusive fee generation. Where a request for information is justified, the government should respond promptly by providing that information and no fee will be necessary. Where the government has a colorable basis in law for withholding the documents, most courts will be reluctant to grant fees under the Blue analysis. In this case, it would be ludicrous to suggest that appellant sought out a chance for pro se litigation to support her otherwise inactive practice. At the time she filed her FOIA request, appellant had no idea the government would be so slow in forthcoming with information. She could not contemplate that court action would be necessary. Nor, at the time she filed her request, was appellant’s practice inactive. She was employed as an Assistant United States Attorney and presumably could not even proceed pro se until after
Finally, the government contends that, since the Court has already refused to grant fees to pro se non-attorney litigants based on foregone income, there is no principled basis for reimbursing attorneys for income lost as a result of self-representation. This argument also fails. There are several commendable reasons for making the distinction urged by appellant. Congress sought to encourage legal representation; thus it makes sense to compensate lawyers for this work. Also, in compensating a pro se litigant, the only real measure of approximating fees incurred is the opportunity cost, or work foregone, due to the representation. This is relatively simple to value where the pro se litigant is an attorney, for the work foregone is of the same nature as that actually performed. Such is not the case for non-attorney pro se litigants. See Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir.1982); Cunningham v. Federal Bureau of Investigation, 664 F.2d 383, 386 (3d Cir.1981).
More fundamentally, appellees’ arguments fail to come to terms with the fee provision’s raison d’etre.
We conclude that the arguments mounted by the government are inadequate to overcome the strong national policy of open government and the crucial role that attorney fees play in protecting this interest. Appellant, through her self-representation, employed legal skills to vindicate an important public right and is entitled to be compensated for the work she performed. That a litigant attorney represents herself or himself does not preclude an award of attorney fees under the FOIA.
3. Recusal of Judge Carr
Appellant claims that Judge Carr should have recused himself from the district court proceedings due to bias. Appellant notes especially that Judge Carr denied attorney fees and costs after this Court’s remand of the case, but before we issued our mandate; appellant thus contends that Judge Carr acted without the benefit of a review of the record. Appellant brings a serious charge of judicial misconduct with
We can only conclude that appellant’s charge, while an allegation of the utmost seriousness, is frivolous in content and wholly without merit. It is a claim that should not be made lightly, as it apparently was in the instant action.
4. Conclusion
We find that: (1) appellant was entitled to attorney fees under the criteria in Blue; (2) the district court clearly erred in holding otherwise; and (3) the fact of appellant’s self-representation does not preclude a fee award. We therefore remand to the district court to determine the appropriate amount of a fee award, reflecting fees for this appeal, and to enter an appropriate judgment consistent with this opinion.
REVERSED AND REMANDED.
. The resolution of the following issue is, of course, irrelevant to the granting of attorney fees for the services performed for appellant by attorney Sylvia Roberts.
. We have also left open the same question under the Civil Rights Attorney’s Fees Awards Act. See Cofield v. City of Atlanta, 648 F.2d 986, 987 (5th Cir.1981).
. Congress indicated that a commercial interest should entail sufficient pecuniary incentives to make a fee award unnecessary. Journalistic, scholarly, and public-interest concerns, however, deserve special encouragement by means of fee awards. See Senate Report No. 93-854 at 19.
. Cazalas first filed her FOIA request on December 19, 1978, and did not receive all the documents until over one year later, on December 28, 1979. In addition, the government exceeded, without proffering any valid explanation, the time limits for additional responses and appeals.
. 5 U.S.C. § 552(a)(4)(E).
. 5 U.S.C. § 552a(g)(3)(B).
. For the details of appellant’s employment history and the production of the documents she requested under the FOIA and PA, see Cazalas, 600 F.2d at 612-19.
5 U.S.C. § 552(a)(4)(E), the FOIA attorney fee authorization, provides: “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. § 552a(g)(3)(B), the PA attorney fee authorization, provides: “The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.”
Because of the similarity of these provisions, and for convenience, any reference to the FOIA contemplates the provisions of both Acts.
.The question of appellant’s entitlement to attorney fees in the Title VII suit on the merits of her sex discrimination claim is not before this Court.
. It is appropriate to turn to the statute’s legislative history because the statute is ambiguous on its face with respect to this issue.
Concurrence in Part
concurring in part and dissenting in part:
I concur in part 3. of the majority opinion. I likewise agree that the trial court abused its discretion in denying appellant attorney fees for the services of her attorney, Sylvia Roberts, and I concur in the introductory portion of part 1. of the majority opinion, in part l.(c) thereof, and in so much of l.(b) thereof as is based upon “the government’s recalcitrance in complying with her request.”
However, I respectfully disagree with the majority’s conclusion that the trial court abused its discretion in determining that the “public benefit” factor did not mandate an award of attorney fees and that appellant’s request was almost exclusively related to and motivated by personal concerns, with any connection between the documents requested and a public benefit being most limited, incidental, and remote. Not every minor or remote public benefit suffices. See Blue v. Bureau of Prisons, 570 F.2d 529, 533 (5th Cir.1978); Lovell v. Alderete, 630 F.2d 428, 433 (5th Cir.1980).
Nevertheless, in my opinion the government’s extreme recalcitrance in withholding the requested records and its lack of a reasonable basis for doing so, which are clearly established here, of themselves mandate an award of attorney fees under the circumstances of this case.
In Cofield v. City of Atlanta, 648 F.2d 986, 987 (5th Cir.1981), we held a nonattor-ney pro se litigant was not eligible for an attorney fees award under 42 U.S.C. § 1988, and noted that “an act allowing attorney’s fees is ‘not passed for the benefit of attorneys but to enable litigants to obtain competent counsel .... ’ Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719 (5th Cir.1974).” Similarly, in Crooker v. United States Department of the Treasury, 634 F.2d 48, 49 (2d Cir.1980), the Court noted the purpose of the FOIA attorney fees provision as “removing ‘barriers’ to the average person’s ability to secure compliance with the Act.” See also, to the same effect, Crooker v. United States Department of Justice, 632 F.2d 916, 920 (1st Cir.1980) (“... eliminating the obstacle of attorney fees ... ”). This purpose is not subserved by a distinction which favors pro se litigants who are licensed attorneys over those who are not.
Our result in Barrett was influenced by the view that:
“Persons contemplating legal action should be encouraged to consult with attorneys. Litigation may not be necessary. Frustrations and misunderstandings or failures of understanding by the intended complainant may be quickly soothed and resolved by counsel.” Id. at 1089-90.
Essentially the same sentiments appear to have motivated the Fourth Circuit to hold that an attorney pro se litigant was not eligible for an attorney fees award under the Truth-in-Lending Act. White v. Arlen Realty & Development Corp., 614 F.2d 387 (4th Cir.1980).
Our result in Barrett was also influenced by reading the Privacy Act and the FOIA attorney fees provisions as allowing recovery only for “attorney fees ... incurred” by the litigant. 651 F.2d at 1089. By a parity of reasoning, it seems plain that these words contemplate and refer to a situation where services are performed for the litigant by some other person or persons. Attorney “fees” are not generated by a person doing something for himself or herself; and “incurred” likewise imports a relationship to one or more others. We have held that a litigant need not be legally obligated to pay his attorney in order for the latter’s services to form the basis for a statutory award of attorney fees. But the rationale of those holdings does not support the award of attorney fees to a pro se litigant, attorney or otherwise. For exam-
“What is required is not an obligation to pay attorney fees. Rather what — and all — that is required is the existence of a relationship of attorney and client, a status which exists wholly independently of compensation, as witness the effective service of counsel in the defense of criminal cases, the assertion of post-conviction habeas remedies and the now widespread organized services on behalf of the poor.
“... the fees allowed are to reimburse and compensate for legal services rendered and will not go to the litigants, named or class.” (Footnotes omitted.)
Plainly we contemplated that the services for which the award was made would be those rendered to the litigant by someone else.
There is arguably a loss of economic efficiency in motivating a lawyer pro se litigant to rely exclusively on another as counsel, rather than using his own skills. However, this same loss of efficiency applies, though to a lesser extent, respecting non-lawyer litigants. For example, such litigants, if compensated for what they did, might by their own efforts relieve their counsel of much that he would otherwise have to do. Further, gains in economic efficiency will tend to be reduced to the extent the award of fees to the attorney pro se litigant is on the same basis that would have obtained had the litigant and attorney been different persons. Moreover, avoidance of “personal embroilment and lack of objectivity,” White, supra, may itself be an efficiency gain. See Barrett at 1089-90. In my opinion, the considerations of economic efficiency in this setting do not warrant paying attorney pro se litigants for the same things for which we refuse to pay nonattorney pro se litigants. An attorney has no greater right to litigate pro se than does a nonattorney. I do not believe that Congress contemplated any such discrimination. Moreover, I believe the statutory wording plainly contemplates payment for services rendered to the litigant by someone else, not payment for what the litigant does for himself. I therefore respectfully dissent from the holding in part 2. of the majority opinion.
. I also observe that it has not been determined that the government or any of its officials acted improperly toward appellant in her capacity as an Assistant United States Attorney. Cf. Chamberlain v. Kurtz, 589 F.2d 827, 842 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979).
. The Court stated:
“... effective legal representation is dependent not only on legal expertise, but also on detached and objective perspective. The lawyer who represents himself necessarily falls short of the latter.” Id at 388.
It further noted that there the attorney pro se litigant demonstrated “personal embroilment and lack of objectivity.” Id That sort of personal embroilment and lack of objectivity, as distinguished from professional zeal and undivided loyalty to the client, is not entirely absent from this case, understandable though it may be in human terms. See part 3. of majority opinion.