Cazalas v. U.S. Dept. of Justice, 80-3565
| Decision Date | 05 November 1981 |
| Docket Number | No. 80-3565,80-3565 |
| Citation | 660 F.2d 612 |
| Parties | 7 Media L. Rep. 2465 Mary Williams CAZALAS, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General William French Smith and United States Attorney John Volz, Defendants-Appellees. . Unit A * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sylvia Roberts, Baton Rouge, La., Mary Williams Cazalas, New Orleans, La., for plaintiff-appellant.
Susan A. Ehrlich, Leonard Schaitman, C. Frederick Geilfuss, Dept. of Justice, Civil Div., Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CHARLES CLARK, TATE and SAM D. JOHNSON, Circuit Judges.
Plaintiff Mary Williams Cazalas appeals from an order denying her attorney fees incurred in bringing an action to compel production of documents under the Freedom of Information Act, 5 U.S.C. § 552. The trial judge, in affirming the magistrate's determination, held that Cazalas did not "substantially prevail" because she failed to meet the four-part test that we established in Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979) and Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978). On appeal Cazalas contends that she "substantially prevailed" and that the district court abused its discretion in not awarding her fees for herself and her attorney. Because we find that the criteria to be used in determining whether Cazalas "substantially prevailed" are not those set out in Blue and Chamberlain, supra, and that the test established in those cases is directed, instead, to determining the issue of attorney's fees, we reverse on the issue of whether Cazalas "substantially prevailed," and we remand to the district court for the purpose of determining whether Cazalas is entitled to attorney's fees for herself and another attorney.
In brief overview of Cazalas's central contention, which we ultimately uphold, by her request in December 1978, and consistently thereafter she sought memoranda relative to the quality of her work that were used as a basis for the decision of United States Attorney John Volz to discharge her, particularly those obtained by EEO investigator Morman from United States District Judges Rubin and Sear. The purpose at all times was to secure documents relevant to her claim of sex discrimination in the United States Attorney's Office and her defensive allegations that other reasons for the discriminatory treatment and her discharge were pretextual. Although the Department of Justice furnished her many other documents, it did not release the notations of Morman until late December 1979, six months after suit was filed, and it did not release to her a letter dated December 28, 1978 by Volz to the Deputy Attorney General (which stated the reasons why Volz was recommending her discharge) until September 11, 1979, some three months after suit was filed, even though in her administrative appeal on March 19, 1979, she had specifically requested release of that letter. Her FOIA suit was filed on June 12, 1979, after the Department of Justice had exceeded statutory delays in complying with (or explaining why not) her request for FOIA documents and had informed her that, accordingly, she could treat her application as denied.
The facts in the case are rather lengthy, but a complete exposition is necessary in order to demonstrate that Cazalas did "substantially prevail" in her action to compel the production of documents under the Freedom of Information Act.
Cazalas was employed as an Assistant United States Attorney for the Eastern District of Louisiana from February 1971 to April 1979, when she was terminated by then Deputy Attorney General Benjamin R. Civiletti. She filed two complaints with the Equal Opportunity Commission prior to her termination, on October 7, 1978, and November 9, 1978. She filed a complaint alleging retaliation on April 21, 1979. The bases of these complaints were sex discrimination and denial of freedom of speech and due process that she claims grew out of facts that do not concern us here. What does concern us, however, is Cazalas's attempts to obtain certain documents that she needed in connection with the investigation of her EEOC case.
As a result of filing the EEO complaint on October 7, 1978, EEO investigator Morman was sent from the United States Department of Justice in Washington, D.C., to attempt to informally resolve Cazalas's complaint. Failure to conciliate resulted in Cazalas's submission of her formal complaint to the EEOC on November 9, 1978.
She filed a request with John Volz, the United States Attorney, for documents under the Freedom of Information Act and the Privacy Act on December 19, 1978. Cazalas requested (we mark with an asterisk (*) requests that included certain specific centrally important documents not furnished to Cazalas until six months after suit was filed):
* 1. All letters, memoranda, reports, records, statements, notations of telephone conversations, and all other documents pertaining to Cazalas and her work as an assistant United States Attorney.
* 2. All letters, memoranda, reports, records, statements, notations of telephone conversations and all other documents written by any agent, employee, attorney or anyone else for, in or on behalf of themselves or the United States Department of Justice or anyone therein soliciting information pertaining to Cazalas and her work and all responses thereto.
3. A report by Robert Boitman or anyone else pertaining to the case of Edward Lee Wright and a conversation with Robert Glass.
4. All reports made by Robert Boitman pertaining to Cazalas and her work and all requests to him for information relative to Cazalas and her work.
5. All reports, documents, letters, memoranda, or statements pertaining to Cazalas and her work from Jeffrey Axelrod or Larry Klinger of the Civil Division, Department of Justice, Washington, D.C. and any and all requests to either Jeffrey Axelrod or Larry Klinger for information pertaining to Cazalas and her work.
6. All reports, documents, letters, notations, memoranda, or statements pertaining to Cazalas and her work from Susan Jarvis, Florence Quail, or Tony Kopera, attorneys for HUD, or Dr. Bruce Jarvis, husband of Susan Jarvis and a physician at the Veterans Administration Hospital in New Orleans, Louisiana, and all requests for information from Susan Jarvis, Florence Quail, Tony Kopera and Bruce Jarvis.
* 7. All reports, documents, letters, notations, memoranda, or statements pertaining to Cazalas and her work from Judge Alvin B. Rubin, Judge Morey L. Sear, Magistrate Ingard Johansen Judge Adrian Duplantier, and any other judges or magistrates and all requests to any judges or magistrates.
8. All letters from all agencies either complimentary or critical of Cazalas and her work. She referred in particular, but not exclusively, to a letter from U.S. Customs Service sent to the office complimenting her work.
9. All letters, memoranda, documents, notations, statements, and communications between the Department of Justice including the United States Attorney's Office for the Eastern District of Louisiana, and Judge Charles Schwartz, Patrick Breeden, Joseph Defley and Elaine Chauvin pertaining to her legal representation of the Government and SBA in the case of Dore v. Kleppe.
10. All letters, memoranda, notations, reports, or statements and any other documents sent by any employee, agent, or attorney of the United States Department of Justice, or anyone on behalf of the United States Department of Justice relative to Cazalas or her work to any agency, including inter-agency and intra-agency communications.
11. All material added to her personnel file or removed from her personnel file and any changes made in or to her personnel file by anyone since the appointment of John Volz as United States Attorney for the Eastern District of Louisiana.
12. All transcripts of all meetings or conferences in which her work or employment as an assistant United States attorney has been discussed. She referred in particular to a conference at which Lynn Champagne took notes and later produced a typed transcript of the notes.
United States Attorney John Volz acknowledged receipt of the request on December 22, 1978, and forwarded it to the Executive Office for United States Attorneys.
Cazalas did not receive a response to her December 19, 1978 request by January 29, 1979, and on that date, she decided to treat the delay as a denial and filed a formal appeal with the Freedom of Information Appeals Unit. 1 She received a response on February 6, 1979, in which Quinlan J. Shea, Jr., Director of Privacy and Information Appeals, informed Cazalas that he could not act until the Executive Office for United States Attorneys had made an initial determination of Cazalas's December 19, 1978 request. Shea also stated that if Cazalas did not receive a response from the Executive Office for United States Attorneys by the date of his letter, February 6, 1979, that she could treat Shea's letter as a denial of appeal, and bring an action in an appropriate federal court. Shea asked that Cazalas give "sympathetic consideration" to the heavy workload pending in the Executive Office for United States Attorneys.
On March 7, 1979, Cazalas went to Washington and received a response to her original request from Acting Director William Tyson of the Executive Office for United States Attorneys. Tyson stated, inter alia, that:
(1) Cazalas's request with respect to her official personnel file was being referred to the office of the Deputy Attorney General. (Subsequently, Cazalas did receive the ninety-three pages that were contained in her official personnel file on April 13, 1979 2) (2) Cazalas's personnel file that was maintained by the United States Attorney for the Eastern District of Louisiana was available to...
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