Rеv. Dr. Frank D. LOVELL, Plaintiff-Appellant, v. J. F. ALDERETE, Hospital Administrator; J. Hanberry, Warden, Atlanta Federal Penitentiary, Defendants-Appellees. Frank D. LOVELL, Plaintiff-Appellant, v. Norman CARLSON, Director, Bureau of Prisons, et al., Defendants-Appellees.
Nos. 79-2207, 79-2718.
United States Court of Appeals, Fifth Circuit.
Nov. 14, 1980.
630 F.2d 428
Leonard Schaitman, Appellate Staff, Marc P. Richman, Appellate Staff, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for defendants-appellees.
Appeals from the United States District Court for the Northern District of Georgia.
Before VANCE, FRANK M. JOHNSON, Jr., and THOMAS A. CLARK, Circuit Judges.
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,
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 сourt 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 in Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978), the court concluded that, even if pro se litigаnts were entitled to attorney‘s fees, Lovell would 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.
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 bоth 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
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.
- The benefit to the public deriving from the case;
- the commercial benefit to the complainant;
- the nature of the complainant‘s interest in the records sought; and
- 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
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 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.
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
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 discrеtion 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).
(1) Public Benefit
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 filе 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.
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 cleаr 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.
(4) Basis for Government‘s Withholding
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
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.
THOMAS A. CLARK, Circuit Judge, dissenting:
I dissent from that part of the decision and opinion that denies attorney fees. The facts of this case more than fulfill the requirements of the Blue1-1 criteria as I construe the facts and the law.
In Lovell I plaintiff requested a copy of his eyeglass prescription from the Bureau of Prisons in April of 1977. The doctor at the prison refused to furnish the prescription. The government‘s brief at page 3 states the following:
Appellant then appealed to the BOP regional office (R. 10), which denied the request because inmate health records had been exempted by the Attorney General (R. 10-11). See
28 C.F.R. 16.97(a)(6) . Appellant‘s furthеr appeal to the BOP national office was inexplicably referred back to the regional office (R. 13). Appellant questioned the referral (R. 14); he later made two inquires to the regional office, the last in November 1977 (R. 15, 16), but apparently heard nothing further.
Appellant was told nothing, and he filed suit seeking the prescription in March, 1978. In April, 1978, the Government furnished the prescription.
The Government at no time gave any explanation of why the prescription was not disclosed.2-1 In furnishing the prescription and filing its answer to the complaint the Government stated it was doing so pursuant to guidelines established by the Attorney General. It is obvious that the lawsuit brought forth the document rather than any changе in guidelines as I shall try to demonstrate. See
Concerning the first Blue standard, benefits to the public deriving from the case, this judge sees considerable benefit to the public in awarding attorney fees in this type of case. Congress passed the law. The agencies are creatures of the United States Government and should obey the laws passed by the very government creating them. Every small step in the direction of forсing governmental agencies to comply with the law is a step forward for the public. If enough suits are filed and enough attorney fees are awarded,4-1 perhaps the agencies will undertake the practice required of citizens-obedience to the laws. Denial of attorney fees discourages lawsuits against the Government and encourages the agencies to ignore citizens’ requests.
In Blue our court, referring to the Senate Conference Report, said the following:
In the second and third criteria for attorneys’ fee awards, the commercial benefit to the complainant and the nature of his interest in the case, the Senate Report showed a preference for public interest groups, indigents and disinterested scholars over private commercial enterprises’ efforts for disclosure. The reason relates to assuring judicial review over agency decisions against disclosure. Both houses of Congress had heard witnesses who pointed out that without attorneys’ fees litigation costs prevented motive, and often pecuniary benefit to the complainant will be sufficient to insure the vindication of rights given in the FOIA. Id. at 19.
From S.Rep.No.854, 93d Cong., 2d Sess. 19 (1974)5-1
If I understand these two criteria correctly, the emphasis is that the need for attorney fees diminishes if the seeker of the documents is going to make a profit or other benefit from the documents or if the nature of his interеst in the records is such that it will further the person‘s business. If the interest vindicated is purely private one should lean toward awarding attorney fees. If it‘s a business interest, one would lean in the other direction. These factors, too, favor an award of fees under the circumstances of this case.
I conclude that there was a benefit to the public in making the Government agency obey the Government‘s laws, there was no commercial benefit to the plaintiff, the nature of his interest in the record sought was personal and not business or financial, and there was absolutely no legal basis for the Government to refuse to send this man his eyeglass prescription.
The facts of Lovell II are evеn more egregious. The first document was received four months after suit was filed. One of the two reports sought by plaintiff was not furnished him until the Government filed its brief in this court in connection with this appeal, notwithstanding the fact that the Government in its answer and pleadings continually represented to the court that the Government had furnished all of the documents requested. These representations formed the basis of the trial court‘s dismissal of the plaintiff‘s case as being moot. It did not become moot, in fact, until after the appeal was filed.
What I have said with respect to Lovell I applies to the first three Blue criteria, public benefit, commercial benefit, and nature of interest in the records sought. I do not concur with the majority with respect to the fourth Blue factor-the basis for the Government‘s withholding of the documents. I do not find any suggestion that the parole recommendation report was prepared for the courts and thus comes under the exemption set forth in
Differing from my brethren in my evaluation of the facts in light of the Blue criteria, I must answer the question the majority concludes they need not ask, namely, whether a pro se litigant may recover attorney fees against the Government in an action brought pursuant to FOIA and the Privacy Act. This issue has not been decided by the Fifth Circuit. The statute9-1 provides that (t)he court may assess against the United States reasonable attorney fees and other litigation costs reasonably inсurred in any case under this section in which the complainant has substantially prevailed. Can a person acting in his own behalf in the enforcement proceedings against the Government be paid for his time and efforts or is the Government only required to pay when the person had an attorney acting in his behalf?
Several reasons favor the availability of attorney fees for the successful FOIA complainant who also proceeds pro se. First, his time has value and he should be compensated for it. Second, faced with only a pro se complainant, the Government can resist disclosure right up to the point of losing and still escape the penalty of attorney feеs. Yet fees are a useful sanction for unfounded resistance to a disclosure request, and we should not distinguish between those making such requests, on the basis of whether or not they have lawyers, in a way that will cause the Government to be more solicitous of the represented than of those who proceed on their own. Third, the availability of attorney fees would encourage those who cannot afford a lawyer to seek relief through the courts without their having to convince an attorney to accept a contingent fee arrangement, and they should be encouraged to enforce their rights, not discouraged.
The amendment to permit attorney fees was pаssed in 1974 and there is yet only a meager body of law on the subject. The principal case is Cuneo v. Rumsfeld10-1 in which the court was considering whether fees should be paid to a person representing himself. Cuneo was an attorney and had sought documents from the Department of Defense which would benefit him in his practice. Holding that Cuneo was eligible to be paid attorney fees notwithstanding his representation of himself, the court at page 1366 of the opinion said:
The trial court found that since Cuneo and the person appearing on his behalf were partners in the same law firm they were appearing in propria persona and therefore Cuneo did not incur any liability to pay attorney fees. Since he did not incur any liability for attorney fees the court ruled he was not entitled to an award because section 552(a)(4)(E) only authorizes a court to assess reasonable attorney fees and other litigation costs reasonably incurred ....
5 U.S.C. § 552(a)(4)(E) (Supp. V 1975). The law is not clear on the question of whether a party appearing on his own behalf, who is also an attorney, is entitled to tax attorney fees as costs. In light of the legislative history of section 552(a)(4)(E), a complainant, who is otherwise eligible under that section for an award of attorney fees, should not be denied those fees simply because he happens to be an attorney. We find the reasoning of Judge Bryant in Holly v. Acree, 72 F.R.D. 115 (D.D.C.1976) to be persuasive. Judge Bryant found that the wording of section 552(a)(4)(E) shows that the phrase reasonably incurred modifies the phrase other litigation costs, and not the larger phrase reasonable attorney fees and other litigation costs. Id. at 116. The court reasoned that the use of the word reasonable immediately preceding and modifying attorney fees precludes the conclusion that another phrase containing the word reasonable is used to modify attorney fees as well. Id. Judge Bryant therefore held that attorney fees need not be actually incurred to be within the ambit of a costs award under section 552(a)(4)(E). Id. We agree.
The policy considerations underlying the FOIA support this conclusion. In enacting section 552(a)(4)(E) Congress sought to lower the barriers facing the average person requesting information. Furthermore, successful FOIA litigants enhance the public interest by bringing the government into compliance with the law. As agents of the national policy of public disclosure it is equitable that they be awarded for their service.
(Footnotes omitted.)
One cannot justifiably assert that an attorney representing himself is more entitled to a fee than a lay person representing himself. The courts are open to everyone-those who can afford to pay an attorney and those who have to do it themselves. The latter are just as entitled to be paid аs the former are to be reimbursed.
For these reasons, I DISSENT.
Notes
The purpose of this sectiоn 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.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).
(a) The following systems of records are exempt from
(6) Inmate Physical and Mental Health record System (JUSTICE/BOP-007).
These exemptions apply only to the extent that information in these systems is subject to exemption pursuant to
(b) Exemptions from the particular subsections are justified for the following reasons:
(3) From subsection (d) because exemption from this subsection is essential to protect internal processes by which Bureau personnel are able to formulate decisions and policies with regard to federal prisoners, to prevent disclosure of information to federal inmates that would jeopardize legitimate correctional interests of security, custody, or rehabilitation, and to permit receipt of relevant information from other federal agencies, state and local law enforcement agencies, and federal and state probation and judicial offices.
(c) Consistent with the legislative purpose of the Privacy Act of 1974 (Pub.L. 93-579) the Bureau of Prisons will initiate a procedure whereby federal inmates in custody may gain access and review their individual prison files maintained at the institution of incarceration. Access to these files will be limited only to the extent that the disclosure of records to the inmate would jeopardize internal decision-making or policy determinations essential to the effective operation of the Bureau of Prisons ; to the extent that disclosure of the records to the inmate would jeopardize privacy rights of others, or a legitimate correctional interest of security, custody, or rehabilitation ; and to the extent information is furnished with a legitimate expectation of confidentiality. (Emphasis added.)
We must insure that the average citizen can take advantage of the law to the same extent as the giant corporations with large legal staffs. Often the average citizen has foregone the legаl remedies supplied by the Act because he has had neither the financial nor legal resources to pursue litigation when his Administrative remedies have been exhausted. (Hearings, Vol. I at 175.)
Joint Committee Print, Freedom of Information Act and Amendments of 1974, Source Book: Legislative History, Texts and Other Documents (94th Cong. 1st Sess.) at page 99.(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;
General exemptions.-The head of an agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsectiоns (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is-
(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, cоnfinement, release, and parole and probation status: (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.In such a case the court shall determine ... whether such records оr any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. (Emphasis added.)