Clarkson v. I. R. S.
| Decision Date | 21 June 1982 |
| Docket Number | No. 80-7973,80-7973 |
| Citation | 678 F.2d 1368 |
| Parties | , 82-2 USTC P 9437, 8 Media L. Rep. 1933 Robert B. CLARKSON, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE and John Henderson, District Director, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert B. Clarkson, pro se.
Myles E. Eastwood, Asst. U. S. Atty., Atlanta, Ga., John F. Murray, Acting Asst. Atty. Gen., Michael L. Paup, Richard W. Perkins, Gayle P. Miller, Robert A. Bernstein, Tax Div., Dept. of Justice, Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before TUTTLE, TJOFLAT and CLARK, Circuit Judges.
This appeal involves several consolidated cases arising under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976) and the Privacy Act of 1974 (Privacy Act or Act), 5 U.S.C. § 552a (1976). In each of these cases the Court below granted summary judgment in favor of the Internal Revenue Service (IRS) and Director Henderson. Seeking to obtain attorney fees and costs relating to the FOIA actions and to have the judgment relating to the Privacy Act suit reversed, Clarkson filed this appeal pursuant to 28 U.S.C. § 1291 (1976). We affirm in part and reverse in part for the reasons which follow.
Appellant Clarkson has for several years been active in various organizations formed to protest the federal government's system of taxation. In February of 1979, Clarkson served as the principal speaker at a meeting held in Atlanta, Georgia for the purpose of planning the 1979 Tax Protest Day demonstration. Two Internal Revenue Agents, apparently claiming to be insurance agents, attended this meeting. Upon learning the true identity of these agents, Clarkson initiated a series of letters to the IRS requesting copies of various documents pursuant to the FOIA and the Privacy Act. 1
The IRS refused these requests on the ground that it maintained no files on any of the entities named in Clarkson's letters. Dissatisfied with the IRS's responses to his requests, Clarkson filed his first FOIA suit in propria persona against the IRS and Director Henderson on April 18, 1979. After further correspondence between the parties concerning Clarkson's FOIA requests, the IRS provided Clarkson with 109 pages of documents on August 1, 1979, and informed him that other documents were being withheld based on certain exemptions from disclosure under the FOIA. On August 31, 1979, Clarkson filed a second FOIA suit in propria persona against the IRS and Director Henderson. Clarkson also filed a Vaughn Rosen motion to compel the IRS to provide him with a detailed justification for the withholding of all documents claimed to be exempt from disclosure under the FOIA. By order of December 28, 1979, the district court consolidated these two suits, granted Clarkson's Vaughn Rosen motion, and directed the IRS to respond to Clarkson's FOIA request within thirty days. Clarkson contends that it was primarily because of this order that he received a second group of documents from the Department of Justice on January 18, 1980. The district court then reviewed in camera the documents for which the IRS claimed specific exemptions. By order of June 27, 1980, the district court granted the IRS's motion for summary judgment on the basis that the exemptions claimed as to this third set of documents were proper. The costs of the actions were taxed against Clarkson.
Meanwhile, on March 31, 1980, after exhausting his administrative remedies, Clarkson filed a Privacy Act suit against the IRS and Henderson. In this suit Clarkson sought declaratory, injunctive and monetary relief against the defendants for alleged violations of subsections (e)(1), (5) and (7) of the Privacy Act. 5 U.S.C. § 552a(e)(1), (5) and (7) (1976). By order dated July 31, 1980, the district court granted summary judgment in favor of the defendants on the ground that the Privacy Act is not applicable to documents which are not contained in the agency's "system of records" as that phrase is defined by the Act.
Clarkson also filed a series of motions in these cases. On July 24, 1980, he filed a motion for attorney fees in the two FOIA actions. On July 30, 1980, Clarkson filed a motion for a new trial in the FOIA suit. On August 11, 1980, Clarkson filed a motion to consolidate all three cases, a motion for a new trial in the Privacy Act suit, and a cross-motion for summary judgment in the Privacy Act suit. On August 12, 1980, Clarkson filed a motion in opposition to defendant's bill of costs in the FOIA suits. The court treated the new trial motions and the cross-motion for summary judgment as motions for reconsideration. 2 On October 17, 1980, the court entered an order consolidating the three cases and denying Clarkson's other motions.
Awards of attorney fees and costs against the United States are allowable only to the extent that the government has waived its right of sovereign immunity. E.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-68 n.42, 95 S.Ct. 1612, 1626-1627 n.42, 44 L.Ed.2d 141 (1974); Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir. 1981). The Freedom of Information Act contains a specific limited waiver of sovereign immunity by providing:
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). Thus, in the context of FOIA litigation, an award of attorney fees and costs is proper only where the party seeking the award has "substantially prevailed" in the litigation and where the court, in its discretion, determines that such an award is justified in a particular case. E.g., Cazalas v. United States Department of Justice, 660 F.2d 612 (5th Cir. 1981); Lovell v. Alderete, 630 F.2d 428 (5th Cir. 1980); Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978).
Moreover, with respect to attorney fees, the Fifth Circuit Court of Appeals recently interpreted a similar provision of the Privacy Act to authorize such an award only to the extent that the "services of an attorney were utilized and fees incurred." Barrett v. Bureau of Customs, 651 F.2d 1087, 1089 (5th Cir. 1981). Thus, in Barrett, the Court held that pro se litigants who are not attorneys are not entitled to an award of attorney fees even if the other requirements of the Privacy Act are satisfied. 3 Since we find the attorney fees provisions of these acts to be virtually identical, both in terms of statutory language and congressional intent, we must conclude that the holding in Barrett precludes an award of attorney fees under the FOIA to a pro se litigant who is not an attorney. We therefore hold that Clarkson is not entitled to an award of attorney fees for his pro se representation in the two FOIA suits.
Unlike attorney fees, however, costs of litigation can be reasonably incurred even by a pro se litigant who is not an attorney. Thus, the rationale of the Barrett decision would not preclude a pro se litigant from recovering his costs of litigation if the other requirements of the statute are satisfied. See, e.g., Crooker v. United States Department of Justice, 632 F.2d 916, 921-22 (1st Cir. 1980); White v. Arlen Realty & Development Corp., 614 F.2d 387, 389 n.4 (4th Cir. 1980). In deciding whether a party has substantially prevailed, a court should consider whether the "prosecution of the action could reasonably be regarded as necessary to obtain the information" and whether "the action had a substantial causative effect on the delivery of the information." Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980) (quoting Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 514 (2d Cir. 1976)). If a party is found to have substantially prevailed in the litigation, then the court must exercise its discretion in determining whether an award is justified. 4 Cazalas v. United States Department of Justice, supra; Blue v. Bureau of Prisons, supra.
In the instant case, the district court found, without discussion, that Clarkson had not substantially prevailed in his FOIA suits. As is often the case in FOIA suits brought to enforce an administrative request for documents, the record in this case is somewhat confusing as to when and to what extent the government provided Clarkson with the documents requested in his various letters. Yet it is undisputed that Clarkson received two sets of documents from the government at some point after suit had been filed. 5 More importantly, this second set of documents was released only after the court entered an order requiring the IRS to provide Clarkson with a detailed justification of why additional documents were exempt from disclosure. Under these circumstances, we must conclude that the lawsuits "could reasonably be regarded as necessary" and that they had a "substantial causative effect on the delivery of information." Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980) (quoting Vermont Low Income Advocacy Council, Inc., 546 F.2d 509, 514 (2d Cir. 1976)). Since the district court did not reach the issue of whether a discretionary award of costs was justified in this case, we remand this issue to it for further proceedings consistent with this opinion.
Appellant Clarkson raises several statutory challenges to the IRS's practice of collecting and maintaining various documents, including surveillance reports, newsletters and press releases, pertaining to him individually. Specifically he asserts that the collection of documents describing his exercise of First Amendment rights violates subsection (e)(7) of the Privacy Act which provides:
(e) ... Each agency that maintains a system of records shall-
(7) maintain no record describing how any individual exercises rights guaranteed...
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