Haase v. Sessions, 88-5303

• Decision Date: 16 January 1990
• Docket Number: No. 88-5303,88-5303
• Citation: 893 F.2d 370
• Parties: Edward HAASE, Appellant, v. William B. SESSIONS, Director, F.B.I.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 370

893 F.2d 370

282 U.S.App.D.C. 163

Edward HAASE, Appellant, v. William B. SESSIONS, Director, F.B.I.

No. 88-5303.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 15, 1989.

Decided Jan. 16, 1990.

Appeal from the United States District Court for the District of columbia.

David Cole, with whom Michael Ratner and Michael Maggio were on the brief, for appellant.

Edith S. Marshall, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellees. Michael L. Martinez, Asst. U.S. Atty., also entered an appearance for appellees.

Before: MIKVA, SILBERMAN and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellant, Edward Haase, sought attorney's fees under the Privacy Act of 1974, 5 U.S.C. Sec. 552a, and the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412. The district court concluded that Haase was ineligible for fees under both Acts. We affirm the district court's ruling with respect to Haase's request for fees under the Privacy Act and reverse its ruling and remand the case with respect to Haase's request under EAJA.

I.

Edward Haase is a freelance journalist. On January 16, 1985, Haase arrived at Miami International Airport from a trip to Nicaragua. Customs Service officers searched Haase's baggage and separated from the rest of his possessions written materials that they considered might be seditious and therefore excludable from entry under 19 U.S.C. Sec. 1305(a) (1982). ¹ Among these materials was a list of names and addresses found in the backing of a picture frame, which the officers photocopied. At the officers' request, the FBI dispatched an agent to the airport to question Haase and to examine the contents of his baggage. After the agent and a customs officer photocopied Haase's papers, including Haase's personal address book and a diary containing thoughts recorded during his stay in Nicaragua, they returned the originals and allowed him to pass through customs to continue his trip. The FBI agent took the photocopies to the FBI Field Office in Miami. In the course of its review of the documents, the FBI created a short memorandum and a page-and-a-half of handwritten notes regarding the incident.

Haase's attorney made two unsuccessful telephone requests, on January 24 and February 8, 1985, for an inventory and return without dissemination of the photocopies made of Haase's materials. On February 19, 1985, Haase brought an action in district court claiming that FBI and Customs Service agents had conducted their investigation of him in violation of the first, fourth, fifth, and ninth amendments, infringed his right to privacy under the Privacy Act and under common law, and acted ultra vires the agents' statutory authority. In his complaint, Haase asked for an injunction requiring the government to (1) return or destroy all copies made of his papers; (2) disclose to him all agencies or persons to whom the copies were disseminated; (3) expunge from government files all information gained from his papers; and (4) describe all use the FBI made of the copies. Haase also sought a declaration that the seizure and reproduction of his papers violated his constitutional and statutory rights, that it is unlawful for FBI agents to participate in border searches without probable cause or a warrant, and that 19 U.S.C. Sec. 1305(a) (1982) was unconstitutional. ²

On the day Haase filed his action, the district court issued a temporary restraining order compelling the government to place all copies of Haase's papers in the custody of FBI Director William Webster in Washington, D.C., forbidding any additional copying of the documents, and requiring the government to disclose the names of all agencies to which the materials had been disseminated. Over the next few months, the government disclosed the dissemination and use of Haase's documents. And on March 3, 1988, appellees agreed in a stipulation and consent order to return Haase's photocopied documents to him and to destroy all records created in connection with them. On May 14, 1985, the district court granted the government's motion to dismiss Haase's complaint pursuant to FED.R.CIV.P. 12(b). See Haase v. Webster, 608 F.Supp. 1227 (D.D.C.1985). The court dismissed as moot Haase's request for injunctive relief on the ground of the government's agreement by that time "in effect ... [to] accede to all the equitable relief [Haase] could conceivably win by way of injunction...." Id. at 1231. The court dismissed Haase's request for declaratory relief for want of standing. Id. at 1231-34.

On appeal, Haase v. Webster, 807 F.2d 208 (D.C.Cir.1986) ("Haase II "), we affirmed the district court's dismissal of Haase's request for injunctive relief. We reversed and remanded the district court's dismissal of Haase's request for declaratory relief. On rehearing, Haase v. Sessions, 835 F.2d 902 (D.C.Cir.1987) ("Haase III "), we vacated that portion of Haase II that held that the district court properly treated the government's motion to dismiss, insofar as it related to Haase's request for declaratory relief, as a motion for summary judgment, and we remanded in order to give Haase the opportunity to amend his complaint to plead sufficient facts to warrant standing for declaratory relief. See 835 F.2d at 903.

On January 11, 1988, Haase requested that his case be stayed pending resolution of Heidy v. United States Customs Serv., 681 F.Supp. 1445 (C.D.Cal.1988), filed by Haase's counsel on behalf of a nationwide class of persons who had received treatment similar to Haase's on their returns from Nicaragua. ³ The district court denied the request, and Haase sought a voluntary dismissal without prejudice. The court dismissed the matter with prejudice. On March 30, 1988, Haase applied for attorney's fees under the Privacy Act, 5 U.S.C. Sec. 552a, and under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412. ⁴ The district court denied Haase fees under both Acts. In denying Haase's request under the Privacy Act, the district court stated, "to the extent plaintiff did prevail, he did not do so under the Privacy Act." The district court denied Haase attorney's fees under EAJA on the ground that his request under that Act was time-barred.

II.

Attorney's fees and costs may be awarded against the United States only when, under a particular statute, the government has waived its sovereign immunity. And waivers of sovereign immunity, the Supreme Court has repeatedly reminded us, must be narrowly construed. See, e.g., Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986) (citations omitted). The Privacy Act creates several causes of action for violation of its provisions and further authorizes attorney's fees for plaintiffs who prevail under certain causes of action but not necessarily under others.

The four causes of action are set forth in section 552a(g)(1). The first, (g)(1)(A), authorizes suit when a government agency refuses "to amend an individual's record in accordance with his request"; the second, (g)(1)(B), if an agency refuses improperly to permit an individual access to his records; the third, (g)(1)(C), if an agency fails to maintain accurate records and an individual is disadvantaged by a government determination based on those records. The fourth, (g)(1)(D), is a catchall provision authorizing suit if an agency fails to comply with any other command of the Act. One of those commands is embodied in section (e)(7) of the Privacy Act, which forbids an agency from maintaining a record "describing how any individual exercises rights guaranteed by the First Amendment unless ... within the scope of an authorized law enforcement activity[.]"

The first two causes of action for amendment of records and for access to records incorporate exhaustion requirements. In both cases a plaintiff, according to the statutory language, must initially seek an amendment or access from the agency and even seek review within the agency before coming to court. See 5 U.S.C. Secs. 552a(g)(1)(A) & (B); 552a(d)(3) & (1). The court is, thereafter, explicitly authorized to provide equitable remedies, amendment in the first case and an injunction prohibiting an agency from improperly withholding records in the second. See 5 U.S.C. Secs. 552a(g)(2)(A) & (g)(3)(A). In both cases, the statute authorizes attorney's fees to a party who substantially prevails. See 5 U.S.C. Secs. 552a(g)(2)(B) & (3)(B). Appellant claims that the first of these provisions, (g)(2)(B), which states "[t]hat the court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed," authorizes attorney's fees in his case. ⁵ The district judge erred, according to appellant, in concluding that appellant, if he prevailed, did not do so under the Privacy Act because appellant in effect brought an action to "amend" his records, and the above-quoted section authorizes attorney's fees in such an action.

The injunction Haase sought, including requiring the government to return or destroy all copies made of his papers and to expunge from its files all information gained from his papers, would seem broader than a mere amendment. It appears to be an action for equitable relief pursuant to the catchall cause of action, (g)(1)(D), based on the government's failure to comply with section (e)(7) by "maintaining records describing how an individual exercises rights guaranteed under the First Amendment." But we have said that the Privacy Act "authorizes entry of injunctive relief in only two specific situations." Doe v. Stephens, 851 F.2d 1457, 1463 (D.C.Cir.1988) (emphasis added). Although Doe was not a case in which the plaintiff sought an injunction under section (g)(1)(D) to...