Lovell v. Alderete, s. 79-2207
| Decision Date | 14 November 1980 |
| Docket Number | 79-2718,Nos. 79-2207,s. 79-2207 |
| Citation | 630 F.2d 428 |
| Parties | Rev. Dr. Frank D. LOVELL, Plaintiff-Appellant, v. J. F. ALDERETE, Hospital Administrator; J. Hanberry, Warden, Atlanta Federal Penitentiary, Defendants-Appellees. Frank D. LOVELL, Plaintiff-Appellant, v. Norman CARLSON, Director, Bureau of Prisons, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John R. Lowery, Atlanta, Ga., for plaintiff-appellant.
Leonard Schaitman, Appellate Staff, Marc P. Richman, Appellate Staff, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for defendants-appellees.
Appeals from the United States District Court for the Northern District of Georgia.
Before VANCE, FRANK M. JOHNSON, Jr., and THOMAS A. CLARK, Circuit Judges.
This is a consolidated appeal from the district court's orders in two separate actions brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552, (1976) (FOIA) and the Privacy Act, 5 U.S.C. § 552a (1976) (PA). The district court dismissed both actions for mootness and denied plaintiff's request for disciplinary action, damages, and attorney's fees under the Acts.
In the first case (79-2207), Frank D. Lovell, an inmate of the Atlanta Federal Penitentiary, sought a copy of his eyeglass prescription from the prison's medical staff. His request was denied by the chief medical officer. Lovell appealed the denial of his request to the Bureau of Prisons Regional Office which also denied the request on the basis of an exemption for inmate health records. After making further non-productive inquiries, Lovell filed suit in the Northern District of Georgia. He sought release of the prescription under the FOIA, a 60-days' suspension of the defendants from employment, $10,000 in damages, and reasonable attorney's fees and court costs (Lovell I).
The Government responded to the complaint by releasing the requested prescription pursuant to a change in the United States Attorney General's guidelines concerning exemptions. Both parties filed summary judgment motions; the district court disposed of the motions by dismissing the case as moot since the document requested had been released. The court disallowed plaintiff's claims for costs as he had proceeded in forma pauperis. Further, the court ruled that Lovell was not entitled to recover attorney's fees since he had proceeded pro se. After applying the four-part test in Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978), the court concluded that, even if pro se litigants were entitled to attorney's fees, Lovell would not recover fees under the circumstances of this case, especially since there was no showing of malice or bad faith. The lower court declared the remainder of the suit moot.
In the second case (79-2718), Lovell directed to the Bureau of Prisons a request for a copy of an investigative report on the Atlanta Federal Penitentiary and any of his parole recommendation reports submitted by a judge or a United States Attorney. After the Bureau denied these requests, Lovell made further non-productive inquiries. He initially filed this action in the District of Columbia and it was subsequently transferred to the Northern District of Georgia (Lovell II).
Again, relying on the United States Attorney General's new guidelines, the Government released a copy of the Atlanta prison report approximately four months after the initial request. However, the other information requested was not released at that time. The Government filed a motion for summary judgment in which an affidavit erroneously stated that all of the requested information had been released.
The district court dismissed Lovell II for mootness on the basis of the Government's affidavit. Inexplicably, the court never received Lovell's opposition motion. In denying Lovell's request for attorney's fees the court referred to its opinion in Lovell I (which was decided on the same day) and plaintiff's pro se status; however, the court failed to directly apply Blue to the facts of Lovell II.
Lovell moved to reconsider the case since his request for the parole recommendation forms still had not been met. The court denied this motion in light of the Government's subsequent release of the requested forms. Lovell currently has all of the documents he requested.
Lovell contends on appeal that the court erred in dismissing both cases for mootness and by failing to consider the remaining issues of disciplinary action and damages. His main contention on appeal concerns the district court's failure to award him, a pro se litigant, attorney's fees in either suit under the FOIA and PA provisions. We affirm in both cases.
The record clearly shows that Lovell has received all of the information he sought in Lovell I. Even though the information he sought in Lovell II was delivered late, Lovell now has all of the information he requested in that case. The district court correctly dismissed both actions for mootness to the extent that documents were sought. Carr v. Saucier, 582 F.2d 14, 15 (5th Cir. 1978).
We also find that the court was correct in dismissing Lovell's request for disciplinary action and damages pursuant to the FOIA § 552(a)(4)(F) and the PA § 552a(g)(4)(A). However, this request was properly denied because of the failure to meet certain requirements rather than the mootness of the request. Those sections require that, before disciplinary action can be taken or damages can be awarded, it is necessary that the court (1) order production of improperly withheld documents (2) assess attorney's fees and other litigation costs against the Government and (3) issue a written finding that the agency personnel may have acted arbitrarily and capriciously. 5 U.S.C. § 552(a)(4)(F) (1976); 5 U.S.C. § 552a(g)(4)(A) (1976). The court took none of these required actions; in fact the court found no showing of malice or bad faith. Our examination of the record reveals no basis for a finding of malice or bad faith. Accordingly, we find Lovell's claims for disciplinary action and damages are without foundation or merit. See, generally, K. Davis, 1 Administrative Law Treatise, § 5:22 (2d ed. 1978).
Even though Lovell's suits were mooted by the production of the requested documents, mootness does not automatically preclude an award of attorney's fees. Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977); cf. Doe v. Marshall, 622 F.2d 118 at 119 (5th Cir. 1980). We will now examine the issue of attorney's fees in some detail.
The issue of whether a pro se litigant may recover attorney's fees against the Government in an action brought pursuant to the FOIA and PA is one of first impression in this Court. However, since our recent decision in Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978), disposes of Lovell's claims, we need not answer the broader question of whether a pro se litigant is ever entitled to recover attorney's fees in a FOIA or PA case. 1 We agree with the district court that, even assuming pro se litigants in some cases may be entitled to an award under these Acts, Lovell would still not recover attorney's fees under the circumstances in these cases.
It is clear that an attorney's fees award under the FOIA or PA is discretionary rather than presumptive as in civil rights cases. Blue v. Bureau of Prisons, supra, 570 F.2d at 533. Congress enumerated four criteria that courts are to view as flexible guidelines and are to evaluate in light of the fundamental legislative policies underlying the Acts. Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 710-716 (D.C.Cir. 1977). 2 Once a plaintiff has substantially prevailed and thus become eligible for an award of attorney's fees, a court should determine whether the plaintiff is entitled to the award in light of these criteria:
(1) The benefit to the public deriving from the case;
(2) the commercial benefit to the complainant (3) the nature of the complainant's interest in the records sought; and
(4) whether the government's withholding of the records sought had a reasonable basis in law.
Blue v. Bureau of Prisons, supra, 570 F.2d at 533. Additionally, the court may consider any relevant equitable factors that may affect its balancing of the criteria above. Id. at 533.
Lovell argues that, since the Government has released all of the information he requested, he has "substantially prevailed" for the purposes of § 552(a) (4)(E) and § 552a(g)(3)(B) and he is eligible for an attorney's fees award. The mere fact that the information sought was not released until after the suit was instituted without more is insufficient to establish that Lovell "substantially prevailed" in either of his suits. 3 Cox v. United States Dept. of Justice, supra, 601 F.2d at 6. Absent a court order in his favor, plaintiff must show that prosecution of the action could reasonably be regarded as necessary to obtain the information and that the action had a substantive causative effect on the delivery of the information. Id. at 6, citing Vermont Low Income Advocacy Council, Inc. v. Usery, supra, 546 F.2d at 514.
We doubt that Lovell has met the standard set out in Cox since the Government's compliance with his request was not caused mainly by the institution of the suit, but rather was affected by a change in the United States Attorney General's guidelines concerning disclosure of exempted materials. 4 But even if we assume arguendo (as did the district court) that Lovell had substantially prevailed within the meaning of the Acts, he is still not entitled to an award since he fails to meet the criteria in Blue. We now apply those criteria to these appeals.
The district court applied the tests in Blue to this action and held that Lovell was not entitled to attorney's fees. The court found that the disclosure of Lovell's eyeglass prescription under the first criterion served no public benefit; that under...
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