611 F.2d 1132 (5th Cir. 1980), 79-1122, Hoover v. United States Dept. of the Interior

Docket Nº:79-1122.
Citation:611 F.2d 1132
Party Name:Harry E. HOOVER, Plaintiff-Appellant, v. The UNITED STATES DEPARTMENT OF THE INTERIOR et al., Defendants-Appellees.
Case Date:February 15, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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611 F.2d 1132 (5th Cir. 1980)

Harry E. HOOVER, Plaintiff-Appellant,




No. 79-1122.

United States Court of Appeals, Fifth Circuit

February 15, 1980

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[Copyrighted Material Omitted]

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James E. Roberts, Birmingham, Ala., for plaintiff-appellant.

Wendy M. Keats, Leonard Schaitman, U. S. Dept. of Justice-Civil Div., App. Staff, Washington, D. C., J. R. Brooks, U. S. Atty., Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before AINSWORTH, VANCE and ANDERSON, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant Harry E. Hoover, owner of the "Blowing Wind Cave" in Alabama, brought this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B), to

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compel the Department of the Interior to make available for inspection and copying an appraisal report made relative to appellant's cave and surrounding lands. The district court dismissed the suit because of the pendency of a subsequently filed condemnation proceeding brought by the Department to acquire Hoover's property. On appeal, appellant contends that he is entitled under the FOIA to obtain the appraisal report. We disagree, and therefore affirm the judgment of the district court.

Appellant's cave is significant because it provides a home for the rare "gray bat," an endangered species. 1 The Department of the Interior considered acquiring appellant's cave for that reason, either through purchase or condemnation. Accordingly, in December 1977 the Department obtained, at the cost of $18,000, an appraisal of the cave and 264 acres surrounding it. The appraisal was purchased from an independent nongovernment appraiser with expertise in cave properties. 2 Based on the appraisal, the Department, on February 16, 1978, offered appellant $325,000 for his property. At the same time, the Department presented appellant with a summary statement of the basis of the offer as required by section 301(3) of the United Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601 et seq., 4651(3).

Appellant did not accept the offer, but instead sent the Department a letter dated April 4, 1978, requesting further information pursuant to the FOIA. Among other items, appellant sought "a copy of the appraisal upon which (the Department) based the $325,000.00 offer." In response, the Department, in a letter dated April 21, 1978, complied with most of appellant's requests, 3 but declined to disclose the appraisal report. The Department asserted that the FOIA did not mandate disclosure of appraisals during the "negotiation process," and until such time as the property was purchased or condemned, the report would not be made available. The Department based its refusal on Exemption 5 of the FOIA which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b) (5). The Department described two ways in which disclosure would adversely affect the operation of the Department's land acquisition program. First, disclosure would inhibit and prolong the "negotiation process by encouraging debates over the specifics of an appraisal report." Second, disclosure would introduce "an imbalance in favor of the landowner in the negotiating process" by giving him premature and unilateral access to the government's appraisal. The Department's letter also informed appellant of his right to appeal the decision.

Appellant exercised his right to appeal, and sent a letter dated April 26 to the Department's Freedom of Information Act officer. Essentially, appellant argued that Exemption 5 was inapplicable because it would be unfair for an individual landowner to incur the costs of procuring another appraisal when one already existed. Access to the government's report would greatly aid the landowner in determining the reasonableness of the offer thereby serving to shorten the negotiation process and reduce the need for condemnation proceedings. The Department rejected appellant's claim on July 11, 1978, on the ground that the appraisal was exempt from disclosure under

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Exemption 5. The Department enclosed a memorandum of law from the Department's Office of the Solicitor detailing the legal basis for its refusal to disclose the appraisal.

Having exhausted his administrative remedies, appellant filed this suit in the district court for the Northern District of Alabama on July 21, 1978. In the meantime, negotiations for the purchase of the cave broke down. On September 20, 1978, the government instituted condemnation proceedings to obtain the property. 4 On November 1, 1978, the district court dismissed the instant suit without prejudice. The district court ruled that the appraisal was an intra-agency memorandum within the meaning of Exemption 5, but refused to consider the question whether the report would be discoverable by a party in litigation with the agency. Given that the condemnation action was then pending, the district court held that the request for the report should be considered in that action through normal discovery procedures. The district court held:

A simple request for production of the appraisal report in (the condemnation) action will place the burden on the United States to produce the report or carry the burden of satisfying the court in that action that it should not be made available in that litigation. The court is of the opinion that the Freedom of Information Act may not be used as a substitute for judicial resolution of discovery matters which may arise in pending litigation and that the discoverability of the report more appropriately should be resolved in the pending litigation.

This appeal requires consideration of three issues. The first issue is whether or not the district court was correct in dismissing the instant FOIA suit based upon the fact that there was a pending condemnation action between the parties. Since we find that the district court erred in dismissing the FOIA suit on that ground, we must consider the merits of appellant's claim. The second issue is whether the appraisal constitutes an intra-agency memorandum under the terms of Exemption 5. The third issue, which the district court declined to consider, is whether the appraisal is discoverable in litigation between a private party and the agency. We agree with the district court that the appraisal is an intra-agency memorandum. We further hold that the report is not routinely discoverable in litigation with the agency. As a result, we find that the appraisal falls within the provisions of Exemption 5, and need not be disclosed.


The Department contends that the district court properly exercised its inherent equitable powers when it dismissed the instant FOIA suit because of the pending condemnation proceeding. The Department relies on a number of cases supporting broad application of the district court's equitable powers to stay or dismiss its proceedings where other actions raising similar issues are pending. See, e. g., Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) ("(a)s between federal district courts, . . . though no precise rule has evolved, the general principle is to avoid duplicative litigation"); Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952); Landis v. North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936). The Department cites Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), for the proposition that district courts retain their general equitable powers in FOIA actions.

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The Department urges that the dismissal is supported by the general proposition that the FOIA was not intended to benefit private litigants. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1513 n.10, 44 L.Ed.2d 29 (1975). Inherent in the argument is the conception that the issues to be resolved in the FOIA action and the condemnation proceeding are essentially the same, and that to allow both suits to proceed would inevitably result in the waste of judicial resources. See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1203 (2d Cir. 1970) ("(c)ourts already heavily burdened with litigation with which they must of necessity deal should . . . not be called upon to duplicate each other's work in cases involving the same issues and the same parties," Citing Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 930 (3d Cir. 1941), Cert. denied, 315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211 (1942)).

In an FOIA suit involving Exemption 5, the needs of particular litigants are not relevant to the question of disclosure. Rather, an FOIA action involves a determination of whether a document would "not be available by law to a party other than an agency in litigation with the agency." The use of the indefinite article "a" preceding the word "party" indicates that Exemption 5 is to be applied "without regard to the particular circumstances or needs of any specific actual or hypothetical party." Brockway v. Department of Air Force, 518 F.2d 1184, 1192 n.7 (8th Cir. 1975). This circuit has held in an analogous context that discovery in a criminal case under the Federal Rules of Criminal Procedure and the disclosure provisions of the FOIA "provide two independent schemes for obtaining information through the judicial process." United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977). In Sears, the company making the FOIA request...

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