601 F.2d 1 (D.C. Cir. 1979), 78-2267, Cox v. United States Dept. of Justice

Docket Nº:78-2267.
Citation:601 F.2d 1
Party Name:Eddie David COX, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE et al.
Case Date:June 11, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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601 F.2d 1 (D.C. Cir. 1979)

Eddie David COX, Appellant,



No. 78-2267.

United States Court of Appeals, District of Columbia Circuit

June 11, 1979

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[Copyrighted Material Omitted]

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Before WRIGHT, Chief Judge, MacKINNON and ROBB, Circuit Judges.

Opinion Per Curiam.


Eddie David Cox filed an action Pro se against the United States Department of Justice and the United States Marshals Service ("Marshals") to obtain information he had requested under the Freedom of Information Act, 5 U.S.C. § 552 (1976). After Cox filed suit, the Marshals voluntarily released most but not all of the requested information. Cox amended his complaint (1) to obtain disclosure of the remaining material, and (2) to seek an award of attorney's fees for having caused disclosure of the material the Marshals had released. The district court granted the Marshals' motion for summary judgment. The matter comes before us on Cox' motion for appointment of counsel to pursue the two claims on appeal. We deny the motion insofar as Cox seeks appointment of counsel to pursue the first claim, and we concomitantly dismiss the appeal on that claim Sua sponte. We grant the motion insofar as Cox seeks appointment of counsel to pursue the attorney's fees claim, and we concomitantly, Sua sponte, vacate that portion of the district court's judgment relating to that claim and remand the case to the district court for further proceedings on that claim not inconsistent with this opinion.

Cox is an inmate at the federal penitentiary in Marion, Illinois. By letter dated November 8, 1976, Cox asked the Marshals for a copy of the Manual for United States Marshals ("Manual"), citing the Freedom of Information Act. Six months later, having received no response from the Marshals, Cox wrote to the Attorney General to report the Marshals' inaction and to appeal what Cox construed as a tacit denial of his claim. In a letter dated May 26, 1977, the

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Justice Department replied that, owing to its limited resources, it could not pass on Cox' request until the Marshals had. While acknowledging that the Freedom of Information Act entitled Cox to regard the Marshals' silence and its own response as a refusal to release the information, the Justice Department asked Cox to postpone filing suit until the Marshals actually reviewed his demand for the Manual. In December 1977, not having heard from the Marshals, Cox sued.

Four months later, in April 1978, the Marshals notified Cox that it had decided to release a copy of the Manual, with certain deletions, upon Cox' payment of the duplication costs. Unsatisfied, Cox pressed his claim for the remaining material and also added a request for an award of attorney's fees based on the Marshals' release of the noncontroversial portions of the Manual. In an affidavit accompanying his motion for summary judgment, Cox claimed entitlement to the deleted portions of the Manual dealing with the following subject matters: the caliber of the weapon and the length of the barrel on the weapon used by the Marshals: the type of ammunition they used, and the number of rounds they are issued; the type of handcuffs they used, and the key combinations matching the handcuffs; the place where the keys are secured; the radio transmission and receiving frequencies of operational units; arrangement of prisoners during transportation of same, including the use of restraining devices; the position of the weapons on security personnel while transporting prisoners; and the inspection of prisoners during transport for objects used to break open handcuffs. The district court granted the Marshals' motion for summary judgment on the ground that the foregoing items related to housekeeping matters exempt from disclosure under subsection (b)(2) of the Freedom of Information Act.

Subsection (b)(2) exempts from the disclosure provisions of subsection (a) materials that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2) (1976). This exemption applies to matters of merely intra-agency significance in which the public could not reasonably be expected to have a legitimate interest. Department of the Air Force v. Rose, 425 U.S. 352, 369-70, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). The exemption covers those portions of law enforcement manuals that prescribe the methods and strategy to be followed by law enforcement agents in the performance of their duties. See Ginsburg, Feldman & Bress v. Federal Energy Administration, Civ.No. 76-0027 (D.D.C. June 18, 1976), Aff'd per curiam by an equally divided court, 192 U.S.App.D.C. 143, 591 F.2d 752 (1978) (en banc), Cert...

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