Crooker v. U.S. Dept. of Justice

• Decision Date: 10 October 1980
• Docket Number: No. 80-1109,80-1109
• Citation: 632 F.2d 916
• Parties: 6 Media L. Rep. 2103 Michael Alan CROOKER, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 916

632 F.2d 916

6 Media L. Rep. 2103

Michael Alan CROOKER, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 80-1109.

United States Court of Appeals, First Circuit.

Submitted April 10, 1980.

Decided Oct. 10, 1980.

Michael Alan Crooker, pro se.

Edward F. Harrington, U.S. Atty., Boston, Mass., and Charles K. Mone, Asst. U.S. Atty., Boston, Mass., on brief for defendant-appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The only issue presented by this appeal is whether the appellant is entitled to an award of attorney fees under the Freedom of Information Act (FOIA). 5 U.S.C. § 552(a)(4)(E). The facts are essentially undisputed. On April 19, 1979, the appellant, Michael A. Crooker, made a written request to the Department of Justice for a copy of any "charging manuals, rules and guidelines used by the Office of the United States Attorney for the District of Massachusetts and/or the manner in which prosecutorial discretion will be exercised." Complaint at para. 5. Upon receipt, the Department of Justice forwarded the request to the Office of the United States Attorney for the District of Massachusetts, who allegedly received it on May 11, 1979. After receiving no response and considering his request denied, plaintiff filed suit under FOIA on May 22, 1979. ¹ Nearly simultaneously, the United States Attorney's office advised appellant on May 21, 1979 that it had no documents of the type requested. Appellant, unsatisfied with the government's response, notified the United States Attorney's office on June 12, 1979 that "he had brought suit to compel disclosure and that he did not believe the May 21, 1979 response." The United States Attorney's office referred this second letter to the Department of Justice. On July 5, 1979 the Department released to the appellant a forty-two page document entitled "Material Relating to Prosecutorial Discretion." Appellant, still unsatisfied with the government's efforts, on October 2, 1979 refiled an earlier motion ² which requested that the Government be ordered "to file affidavits and an index of all such materials as suggested in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974)." The court ordered a response which the Government, on November 7, 1979, complied with by stating that no such "index" was necessary insofar as one document had already been disclosed and because a second document had been forwarded to the Department of Justice for review. On January 3, 1980, a second document of eight pages ³ was released. At this point, the appellant, satisfied that his request had been fulfilled, asked that the case be dismissed and that he be awarded attorney fees in the amount of $165.00. The case was dismissed, but the request for fees was denied upon two grounds: that the appellant had litigated pro se; and that the present case was controlled by Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976). ⁴ This appeal followed.

5 U.S.C. § 552(a)(4)(E) provides 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.

Although, in general terms, the award of attorney fees is left to the discretion of the district court, and FOIA is no exception, we are in the present case concerned that the district court's exercise of discretion may have been misguided. Putting aside for one moment the question of appellant's pro se status, both the district court, in its ruling below, and the Government, in its argument on appeal, place exclusive reliance on Vermont Low Income Advocacy Council, Inc. v. Usery, supra (hereinafter VLIAC). Even were we to accept the rule of law enunciated by VLIAC, there are enough factual differences between that case and the present case to question whether it should have compelled the district court's ruling.

In VLIAC, the complainant filed an FOIA request for certain documents from the Boston Office of the Department of Labor. Under an invocation of certain FOIA exemptions, the request was denied "within the 10 day response period of the FOIA, 5 U.S.C. § 552(a)(6)(A)(i)." Id. at 510. This denial was appealed to the Solicitor of Labor in Washington, D.C., who did not respond within the twenty-day period for determining appeals. 5 U.S.C. § 552(a)(6)(A)(i). The complainant then advised the Department of Labor that it intended to file suit unless the requested documents were received by a certain date. The Department immediately replied by telegram that it had not been able to locate the file, as it had not yet been received in the mail. The Department also requested the complainant's telephone number so that the matter could be discussed. However, the complainant did not accept the Department's invitation but, instead, upon the expiration of the time period it had set, proceeded to file suit. While suit was pending, the Department of Labor received the records and decided to produce the documents. On this set of facts, the court in VLIAC stated:

In order to obtain an award of attorney fees in an FOIA action, a plaintiff must show at a minimum that the prosecution of the action could reasonably have been regarded as necessary and that the action had substantial causative effect on the delivery of information.

546 F.2d at 513. Because the evidence indicated that the Department of Labor would have produced the documents irrespective of the suit, the court ruled that the complainant had not "substantially prevailed" on his claim so as to warrant an award of attorney fees.

The facts in the present case may not be susceptible to the same treatment. First, the initial response in the present case was altogether different. Unlike in VLIAC, the requesting party here did not receive a timely response from the agency as required by statute. 5 U.S.C. § 552(a)(6)(A). At the time he filed suit, the appellant could legally have assumed that his request had been denied, with no further exhaustion required. 5 U.S.C. § 552(a)(6)(C). Although we note that there was no legal impediment to the filing of suit, this does not necessarily mean that such a suit was either necessary or that it had any causative effect. The Government, without affidavit or other probative evidence, hangs its argument on its statements that the agencies involved are not "structured in such a manner as to be able to instantly locate and retrieve all memoranda written on a particular subject" and that "in an imperfect bureaucracy our retrieval system is less efficient than it should be." Government Memorandum of Law at 5. But when the government did respond to appellant's request, it was not to assure him that his request was being attended to, see Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C.Cir.1976), or to invoke any time extension provision, 5 U.S.C. § 552(a)(6)(B), but to inform him that the requested documents did not exist.

Second, it is not altogether clear that appellant's June 12 letter would, by itself, have produced the disclosure. On one hand, the first document was in fact released shortly thereafter. Viewed from this angle, the letter may have simply alerted the government to an earlier error and initiated a second good faith effort to locate and produce the documents. On the other hand, this second letter was not technically a request, but a notification that suit had been filed. It seems plausible that the second effort to locate and produce the records was triggered by the mention of suit in this letter. While, understandably, the Government claims that the former interpretation is true, our problem is that, aside from the Government's statement to this effect in its memorandum of law, there is nothing in the record to document this conclusion; nor did the district court make a specific finding to this effect. ⁵

Moreover, we have trouble overlooking the fact that the second letter appears to have produced only partial compliance. The record clearly negates the inference that what was involved was a piecemeal request that necessitated piecemeal compliance. See Goland v. Central Intelligence Agency, 607 F.2d 339, 355 (D.C.Cir.1978). Although we do not have the documents before us, it has nowhere been advanced that the second document was unimportant or not relevant to the request. Indeed, if we look at what was actually sought, supra at 1, it would seem that the second document was of more importance than the first.

Lastly, the Government has not explained, nor do we understand, why the appellant's request was such an especially difficult one for either of the agencies involved as to require nearly nine months to satisfy. ⁶ We note that requests of this same genre have been made in the past to this agency, Jordan v. United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978) (in banc), in what appear to be more than isolated situations. See The Nat'l L. J., "Justice Department to Release District Prosecution Guides," June 9, 1980, at 5. We note that, as presented, the request was not so broad or vague as to leave the agency in doubt as to what exactly was sought. See Mason v. Callaway, 554 F.2d 129, 131 (4th Cir.), cert. denied, 434 U.S. 877, 98 S.Ct. 229, 54 L.Ed.2d 157, rehearing denied, 434 U.S. 935, 98 S.Ct. 424, 54 L.Ed.2d 295 (1977).

In light of all these factors, our review does not reveal any promise of "amicable resolution" of the dispute, such as was present in VLIAC, 546 F.2d at 514, or that the resulting disclosure would have been "not one whit different" if the appellant had withheld his legal action, 546 F.2d at 515. By the same token, we are not prepared to say that the institution of a lawsuit was determinative. What our reading of the record does show is that, faced with a colorable claim of...