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July 22, 1980


The opinion of the court was delivered by: GREENE

The issue in this case is whether an individual who after his conviction in federal court became a fugitive from justice is entitled to processing of his request under the Freedom of Information Act, 5 U.S.C. 552 et seq., for documents in the possession of the Department of Justice and the Federal Bureau of Investigation.

On February 3, 1965, plaintiff pleaded guilty to a violation of the Securities Act of 1933, 15 U.S.C. § 77e, in the United States District Court for the District of Connecticut. Thereafter, he was sentenced to a term of imprisonment for three years, all but three months being suspended. *fn1" Plaintiff failed to appear for service of his sentence, and on July 15, 1965, a bench warrant was issued for his arrest. Plaintiff is now residing in the Republic of Panama and, by his own admission, he is evading service of the warrant there.

 In August, 1977, acting through an attorney, plaintiff requested "all or any part of the files, papers, documents, and memoranda of, about, and concerning John Christopher Doyle and/or Canadian Javelin Limited in the possession of the Department of Justice." After some delay, the Department of Justice and the FBI advised plaintiff's attorney that they were suspending processing of the request because of plaintiff's status as a fugitive. This suit followed, and the matter is now before the Court on defendants' motion to dismiss and plaintiff's motion for summary judgment.

 Plaintiff's position is relatively simple and straightforward. *fn2" The Freedom of Information Act provides in subsection (a)(3) that each government agency upon receipt of "any request . . . shall make the records promptly available to any person," *fn3" and plaintiff argues that the statute means just what those words say. He also relies upon legislative history and court decisions indicating that the Act was not intended to be unavailable to persons with a special interest in the records being requested, to foreign nationals, to those involved in litigation, or to those convicted of felonies. See NLRB v. Sears Roebuck & Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 1515, 44 L. Ed. 2d 29 (1975); Deering Milliken, Inc. v. Irving, 548 F.2d 1131 (4th Cir. 1977). *fn4"

 There appear to be no precedents on the issue before the Court, and the case must therefore be decided on the basis of general principles. For the reasons discussed below, the Court has concluded that it is not bound to require government departments to comply with Freedom of Information Act requests from those who are fugitives from justice.

 Courts have long refused to entertain various types of legal proceedings when brought by persons who are fugitives. In 1876, the Supreme Court ordered a case removed from its docket when it came to its attention that the petitioner had escaped from custody. Smith v. United States, 94 U.S. 97, 24 L. Ed. 32 (1876). More recently, in Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970), the Court followed a similar practice, explaining (396 U.S. at 366, 90 S. Ct. at 498):

 See also, Eisler v. United States, 338 U.S. 189, 69 S. Ct. 1453, 93 L. Ed. 1897 (1949); *fn5" United States v. Tremont, 438 F.2d 1202, 1203 (1st Cir. 1971); United States v. Sotomayor, 592 F.2d 1219, 1220 n. 1 (2d Cir. 1979); United States v. Sacco, 571 F.2d 791, 793 (4th Cir. 1978); United States v. Wood, 550 F.2d 435, 437-8 (9th Cir. 1976); United States v. Shelton, 482 F.2d 848, 849 (5th Cir. 1973). *fn6"

 Plaintiff makes three points in support of his contention that these decisions are not applicable here. None of these contentions is well taken.

 First. Plaintiff argues that the Molinaro line of cases is based on concepts of mootness which are inapplicable to the present situation. That is not correct. The Court in Molinaro expressly disavowed any reliance upon lack of a case or controversy, basing its decision instead on what can best be described as equitable principles.

 Second. Plaintiff contends next that the precedents involved situations where the complainant was seeking relief directly related to his initial conviction. An analysis of the decisions shows this contention, too, to be factually erroneous. For example, in Dawkins v. Mitchell, 141 U.S. App. D.C. 213, 437 F.2d 646 (D.C.Cir.1970), the plaintiffs, who had not been convicted of any charge, brought civil actions to restrain the enforcement of fugitive warrants outstanding against them, but the Court of Appeals upheld a dismissal based upon their refusal to subject themselves to the jurisdiction of the District Court. *fn7" In United States v. Commanding Officer, 496 F.2d 324 (1st Cir. 1974) injunctive and declaratory relief was being sought by way of a petition for writ of habeas corpus against enforcement of an Army regulation. While the matter was pending, the petitioner absconded from custody and indeed from the Army, and the court had to consider whether the case survived. Declining to decide the matter on mootness grounds, it stated that a person who seeks "to invoke the processes of the law while flouting them (is) (not entitled) "to call upon the resources of the court for determination of his claims.' " And in Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir. 1976), the Court of Appeals for the Fifth Circuit refused to hear an appeal from a fugitive *fn8" who sought damages and injunctive relief from an allegedly illegal state wiretap.

 Third. Plaintiff argues that, whatever may be the rule with respect to other areas of the law, under the Freedom of Information Act an individual has an absolute right to access to records, irrespective of equitable considerations. To be sure, the Court of Appeals for this Circuit has indicated in several cases that a district court "has no equitable jurisdiction to deny disclosure on grounds other than those (set) out under one of the Act's (inherent exceptions)." Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1076 (D.C.Cir.1971); Getman v. NLRB, 146 U.S. App. D.C. 209, 450 F.2d 670, 678 (D.C.Cir.1971); see also Tax Analysts and Advocates v. IRS, 164 U.S. App. D.C. 243, 505 F.2d 350 (D.C.Cir.1974). These decisions, however, involved appeals to equitable discretion in wholly different circumstances from those present here. More significantly, there is direct precedent from the Supreme Court and from the Court of Appeals some of it subsequent to the decisions noted above which points in the opposite direction.

 In Renegotiation Board v. Bannercraft Clothing, Inc., 415 U.S. 1, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974) the Supreme Court stated (415 U.S. at 20, 94 S. Ct. at 1038)

With the express vesting of equitable jurisdiction in the district court by § 552(a), there is little to suggest, despite the Act's primary purpose, that Congress sought to ...

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