Sinito v. U.S. Dept. of Justice

• Decision Date: 18 May 1999
• Docket Number: No. 98-5227,98-5227
• Parties: Frank SINITO, Next-of-Kin of Thomas J. Sinito, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 512

176 F.3d 512

Frank SINITO, Next-of-Kin of Thomas J. Sinito, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees.

No. 98-5227.

United States Court of Appeals, District of Columbia Circuit.

Argued April 5, 1999.

Decided May 18, 1999.

Appeal from the United States District Court for the District of Columbia (No. 87cv00814).

James H. Lesar argued the cause and filed the briefs for appellant.

Dara A. Corrigan, Assistant United States Attorney, argued the cause for appellees. With her on the brief were Wilma Before: WALD, RANDOLPH and GARLAND, Circuit Judges.

A. Lewis, United States Attorney, and R. Craig Lawrence, Assistant United States Attorney.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This case presents the question whether a claim brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, can ever survive the death of the original requestor. We hold that it may, but remand the case to the district court to determine whether the deceased requestor's son is the proper party for substitution within the meaning of Fed.R.Civ.P. 25(a).

I.

Thomas Sinito filed this FOIA action in 1987, seeking disclosure of documents generated as part of an organized crime investigation that resulted in his conviction and imprisonment. Sinito died while still in prison in December 1997, before this protracted litigation was completed. On January 7, 1998, appellees moved in the district court to dismiss the case as moot based upon the death of the plaintiff. On January 29, 1998, Sinito's counsel opposed the motion and moved to substitute Sinito's son Frank as the plaintiff. The district court granted appellees' motion to dismiss and denied the motion to substitute, ruling that the FOIA statute is not remedial and thus, that Sinito's cause of action cannot survive his death. See Sinito v. United States, Civ. No. 87-814 (D.D.C. March 31, 1998). Sinito's son appealed the dismissal. While we disagree with the district court's conclusion that a FOIA cause of action can never survive the death of the original requestor, we remand for a consideration of whether Sinito's son qualifies under Rule 25(a) as a legal representative eligible to continue the action.

We held in Mallick v. International Bhd. of Electrical Workers, 814 F.2d 674 (D.C.Cir.1987), that whether a cause of action based on a federal statute survives the death of the plaintiff is a question of federal law. In answering this question, a court's role is to "formulate a federal rule of decision that best serves the goals which underlie the federal right of action itself," and thereby "effectuate the will of Congress as best [we] can." Id. at 677. That Congress failed to include a specific clause in the statute providing that the action should survive the death of the original party does not necessarily mean that Congress intended the action to abate upon the party's death. Id. (citing Cox v. Roth, 348 U.S. 207, 209, 75 S.Ct. 242, 99 L.Ed. 260 (1955)).

Mallick involved a union member's lawsuit brought under the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 431(c), seeking disclosure of a union's financial records. We held that the action survived the original plaintiff's death and that a fellow union member could be substituted as plaintiff in his place. We find the instant case seeking disclosure of records under the FOIA analogous. First, in examining the purpose of the LMRDA, Mallick said that "deterrence of wrongful conduct is a major goal underlying the authorization for union member lawsuits" because Congress mandated disclosure of a union's financial records in order to prevent union leaders from mismanaging union funds and union affairs. Mallick, 814 F.2d at 677 (citing H.R.Rep. No. 86-741, at 8 (1959)). This deterrence principle would not be well-served if the action abated upon the death of the particular union member who brought the suit for disclosure. Id. ("union officials contemplating abusive conduct must know that they are readily accountable through [LMRDA] lawsuits to verify the union's reports").

Similarly, "the basic purpose of the Freedom of Information Act [is] 'to open The government argues that the FOIA statute, unlike the LMRDA, does not serve a deterrent purpose because under the LMRDA, "all of the other union members would be seeking the same information to remedy the same harm as the deceased plaintiff." Government's Brief at 6 (emphasis added). In other words, the LMRDA redresses a "particular" harm--"a problem or aberration in the union's financial records," id. at 6-7--whereas the FOIA "provides a window for any individual to open into the functions and workings of the government and an effective mechanism to ensure the disclosure of documents." Id. at 7. From this, the government concludes that the FOIA cannot correctly be viewed as a "remedial" statute intended to deter official misconduct, but should instead be considered as an access right accorded to all citizens in the interest of open government.

                agency action to the light of public scrutiny.' "  U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting Department of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)) (internal quotation omitted);  see also NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) ("The basic purpose of the FOIA is to insure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.");   120 Cong. Rec. 17,038 (1974) (statement of Sen.  Weicker) ("None of the abuses [by government officials] that we have seen come out of this system would have happened if more people, more eyes, more ears, had been on the scene.");   H.R.Rep. No. 89-1497, reprinted in 1966 U.S.C.C.A.N. 2418, 2419 (hereinafter "House Report") (the FOIA was enacted because "the weed of improper secrecy had been permitted to blossom and was choking out the basic right to know")
                

It is true that the FOIA allows "any person" to obtain nonexempt records from a government agency without demonstrating any particularized interest in the material or injury stemming from its nondisclosure. See 5 U.S.C. § 552(a)(3)(A). But this by no means obscures the fact that one of its paramount goals, like that of the LMRDA, is to deter secrecy in government and the corruption it can breed. See, e.g., House Report at 2426 (the FOIA strengthened previous public information statute by providing "a specific remedy for any improper withholding of agency records by granting the U.S. district courts jurisdiction to order the production of agency records improperly withheld"); Anthony T. Kronman, The Privacy Exemption to the Freedom of Information Act, 9 J. Legal Studies 727, 733 (1980) (the FOIA's goal is "promot[ing] honesty and reduc[ing] waste in government by exposing official conduct to public scrutiny").

It is largely irrelevant that the LMRDA is aimed specifically at remedying corrupt unions, while the FOIA more broadly targets a variety of evils stemming from secrecy in all facets of government activity. Both statutes provide constituents with a right of access to documents that show how a government or union conducts its business, and both grant a constituent who has been denied such access in violation of the applicable law the right to seek a judgment in federal court ordering release of the documents sought. Neither statute provides a damages remedy, but each enables a prevailing plaintiff to collect attorneys' fees under certain conditions. See 5 U.S.C. § 552(a)(4)(E) (FOIA); 29 U.S.C. § 431(c) (LMRDA). The fact that the FOIA creates a right of access available to all citizens equally, as opposed to the LMRDA's provision of a right of access to union information for a defined class, does not militate in favor of different results based on different purposes of the two acts.

We note that in this respect a FOIA case is not unlike a Bivens ¹ cause of action, which also survives the death of the plaintiff because of its deterrent purpose and effect. See Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). In a Bivens suit, a plaintiff seeks redress for the violation of a right (in Carlson, the Eighth Amendment proscription against cruel and unusual punishment) that is also guaranteed to all citizens equally. And just as a plaintiff in a Bivens action claims that this universally held right was violated by a particular course of conduct, so does a plaintiff in a FOIA case claim that his right to nonexempt government information was violated by a particular course of conduct--the government's refusal to release the specific information he requested. As Mallick indicates, that damages are available in a Bivens action but not in an LMRDA or FOIA case is not necessarily controlling; all three actions produce strong deterrent effects that serve to protect the rights of their intended beneficiaries. Mallick, 814 F.2d at 677 ("The congressional goal of deterring official abuse will be frustrated if unions can avoid disclosing information through protracted recalcitrance....").

Moreover, we are dealing here not with a vast pool of potential FOIA applicants, any of whom might seek to take Thomas Sinito's place in the litigation. An original requestor who goes to court to compel disclosure by the agency has a stake in the legal action which transcends that of "any person" who might seek the FOIA document. He has invested time, and in all likelihood money, in the action. Were it a cause of action sounding in property rights, see Davis v. Oregon State Univ., 591 F.2d 493 (9th Cir.1978) (property interest in continued employment survives death of claimant); Cheramie v. Orgeron, 434 F.2d 721 (5th Cir.1970) (action for patent infringement survives death...