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LOVELL v. DOJ

April 26, 1984

FRANK D. LOVELL, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: SMITH

 Plaintiff Frank D. Lovell, a federal prisoner, brings this action pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against defendant United States Department of Justice. Currently before the Court are plaintiff's request for attorney's fees, and defendant's motion to dismiss for lack of subject matter jurisdiction.

 On October 13, 1980, plaintiff by letter requested the United States Attorney for the Eastern District of New York to produce any documents pertaining to certain statements about him in a "Form 792" prepared by that office in 1974. *fn1" On November 8, the U.S. Attorney informed plaintiff that he should direct his request to the Office of the Deputy Associate Attorney General. On November 18, plaintiff asked that office to produce "any records which pertain to the allegations contained in the [February 1974 Form 792]." Defendant on January 27, 1981, informed plaintiff that his request "had been placed in a list of requests awaiting processing," and that plaintiff should expect a substantial delay in processing because of the large number of requests then pending.

 The parties exchanged similar correspondence throughout 1981 and 1982, and on February 1, 1983, plaintiff filed this action. On May 20, 1983, defendant informed plaintiff that its search had located two responsive documents: a February 1, 1974, court transcript of a hearing involving plaintiff, and a copy of a completed Form 792. On August 5, 1983, defendant filed a motion to dismiss, on the grounds that the case was "moot" by virtue of defendant's production of all responsive documents. This Court denied the motion, holding that defendant had failed to "sufficiently demonstrate by affidavit that its search for responsive documents was adequate." Lovell v. Department of Justice, CA No. 83-0273 (D.D.C. Jan. 17, 1984). On February 27, 1984, plaintiff submitted a "request for attorney's fees" in the amount of $245. Finally, on March 12, 1984, defendant renewed its motion to dismiss, submitted a supplemental affidavit describing its records search procedures, and opposed plaintiff's attorney's fees request. Upon consideration, the Court concludes that defendant's motion should be granted, and plaintiff's request denied.

 A. Subject Matter Jurisdiction: Adequacy of Defendant's Records Search

 Under 5 U.S.C. § 552(a)(4)(B), a federal district court has subject matter jurisdiction only "upon a showing that an agency has 1) 'improperly'; 2) 'withheld' 3) 'agency records'." Kissinger v. Reporter's Committee for Freedom of the Press, 445 U.S. 136, 150, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980). If the agency has in fact produced all responsive records, then the Court has "no further statutory duty to perform," Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 125 (D.C.Cir. 1982), in that once the records are released the "substance of the controversy disappears and becomes moot. . . ." Crooker v. United States Dep't of State, 202 U.S. App. D.C. 9, 628 F.2d 9, 10 (D.C.Cir. 1980). See also Webb v. Dep't of Health & Human Services, 225 U.S. App. D.C. 19, 696 F.2d 101, 107-08 (D.C.Cir. 1982). In order to prevail on these grounds, however, the agency must demonstrate by affidavit that it has fully satisfied FOIA requirements in its search for and production of responsive materials. See Perry v. Block, supra, 684 F.2d at 127; Weisberg v. United States Dep't of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1350-51 (D.C.Cir. 1983); Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 826 (D.C.Cir. 1979). The compliance issue does not turn on "whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, supra, 684 F.2d at 128. Accord, Weisberg v. United States Dep't of Justice, supra, 703 F.2d at 1350-51.

 Generally, in the:

 
"absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA." Perry v. Block, supra, 684 F.2d at 127.

 As noted, this Court found that defendant's original affidavit did not satisfy this standard. Defendant's supplemental affidavit, however, cures the deficiency by carefully detailing "the scope and method" of defendant's search procedures generally, and of the particular search challenged here. The affidavit describes a two-part process; FOIA requests of this type are first reviewed by the appropriate United States Attorney's office, by an attorney or staff member familiar with the underlying matter. The request and response is then reviewed by the "central receiving and processing unit for all United States Attorney's offices," the Executive Office for United States Attorneys. Supplemental Affidavit ("Supp.Aff.") at paras. 14-15. The affidavit establishes that defendant followed these procedures in handling plaintiff's request, and even went beyond by contacting the "Federal House of Detention [in New York] to determine if that facility had any [responsive records]." Supp.Aff. at para. 9. In short, defendant's effort plainly satisfies the "standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures," McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1101, vacated in part, 229 U.S. App. D.C. 148, 711 F.2d 1076 (D.C.Cir. 1983), and is adequately documented by "relatively detailed" and "nonconclusory" affidavits. The Court concludes that defendant is not "improperly withholding agency records" and therefore the case must be dismissed for lack of subject matter jurisdiction. *fn2"

 Plaintiff's request for an award of $245 in "attorney's fees" incurred in prosecuting this case is also before the Court. *fn3" Section 552(a)(4)(E) of FOIA provides that:

 
"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."

 A motion for fees under § 552(a)(4)(E) "requires that two questions be asked and answered. 1) is the plaintiff 'eligible' for such an award, and if so, 2) is it 'entitled' to such an award? Church of Scientology v. Harris, 209 U.S. App. D.C. 329, 653 F.2d 584, 587 (D.C.Cir. 1981). See also Fund for Constitutional Gov't v. National Archives, 211 U.S. App. D.C. 267, 656 F.2d 856, 870 (D.C.Cir. 1981). "Eligibility" goes to whether the plaintiff has "substantially prevailed" within the meaning of the Act, Church of Scientology v. Harris, supra, 653 F.2d at 587, and "entitlement" turns on an evaluation of a number of factors, including:

 
"(1) public benefit derived from the case; (2) commercial benefit to the successful plaintiff; (3) the nature of the successful plaintiff's interest in the records; and (4) whether the agency had a reasonable basis in law for withholding the records. See, e.g., Fenster v. Brown, 199 U.S.App.D.C. 158, 160, 617 F.2d 740, 742 ...

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