Sinito Ex Rel. Sinito v. United States Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 1999 Decided May 18, 1999

No. 98-5227

Frank Sinito, Next-of-Kin of Thomas J. Sinito,

Appellant

v.

United States Department of Justice, et al.,

Appellees

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, ar-
gued the cause for appellees. With her on the brief were
Wilma A. Lewis, United States Attorney, and R. Craig
Lawrence, Assistant United States Attorney.

Before: Wald, Randolph and Garland, Circuit Judges.

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. s 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 impris-
onment. 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 representa-
tive 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 (1955)).

Mallick involved a union member's lawsuit brought under
the Labor-Management Reporting and Disclosure Act of
1959 ("LMRDA"), 29 U.S.C. s 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 Informa-
tion Act [is] 'to open agency action to the light of public
scrutiny.' " Department of Justice v. Reporters Committee
for Freedom of the Press, 489 U.S. 749, 772 (1989) (quoting
Department of Air Force v. Rose, 425 U.S. 352, 372 (1976))
(internal quotation omitted); see also NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 242 (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").

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 "particu-
lar" 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 govern-
ment 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.

It is true that the FOIA allows "any person" to obtain
nonexempt records from a government agency without dem-
onstrating any particularized interest in the material or inju-
ry stemming from its nondisclosure. See 5 U.S.C.
s 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 specifi-
cally 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 constitu-
ents 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. s 552(a)(4)(E) (FOIA); 29 U.S.C.
s 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
Bivens1 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 (1980). In a Bivens suit, a
plaintiff seeks redress for the violation of a right (in Carlson,
the Eighth Amendment proscription against cruel and unusu-
al 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 control-
ling; 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

__________
1 See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971) (violation of the United States Constitution may give rise to a
cause of action for damages against federal officers).

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 invest-
ed 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 of party); Bilanow v.
United States, 309 F.2d 267 (Ct. Cl. 1962) (suit for damages
for wrongful separation from government employment sur-
vives death of plaintiff); Fletcher v. Grinnell Bros., 64
F. Supp. 778 (D.C. Mich. 1946) (action to recover wages under
Fair Labor Standards Act was ex contractu and survived
death of plaintiff), seeking money rather than information,
there would be little doubt that the cause of action survived
his death and passed to his estate. Were the action seeking a
precious book or return of tangible property, the same would
be true. Here the action seeks information, which in many
cases has equal value with money or tangible property, and
there is no reason, absent statutory preclusion, why it should
not similarly survive. The fact that other citizens could have
brought a similar action originally in no way vitiates that
conclusion.

II.

However, a finding that the purposes of the FOIA may be
advanced by permitting a FOIA cause of action to survive the
death of the original requestor does not end the inquiry. We
do not agree with the plaintiff that the FOIA requires anyone
be allowed to step into the deceased plaintiff's shoes. The
federal courts have institutional interests of their own in
regulating the substitution of qualified parties even if a cause
of action survives the death of the original plaintiff. That
institutional regularity is the function of Federal Rule of Civil
Procedure 25(a). See 7C Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure
s 1952 (1986) ("Rule 25 is procedural. It does not provide for
the survival of rights or liabilities but merely describes the

method by which the original action may proceed if the right
of action survives.").

Rule 25 provides, "If a party dies and the claim is not
thereby extinguished, the court may order substitution of the
proper parties. The motion for substitution may be made by
any party or by the successors or representatives of the
deceased party...." Fed. R. Civ. P. 25(a)(1). In the second
part of our analysis in Mallick, we held that Rule 25 did not
bar a fellow union member from substituting for the deceased
plaintiff because the language of the LMRDA showed "the
right to disclosure established by Congress is one shared
without differentiation among all union members.... Since
the union is under the same duty to all members enforceable
by any of its members, it should not matter who the particu-
lar plaintiff is at any particular point in the lawsuit." 814
F.2d at 678. We allowed the union member's substitution
because "there is no sensible basis for construing the proce-
dural rules governing substitution of parties more rigidly
than the rules providing for joinder and intervention of
parties." See id. at 679 (citing Fed. Rules Civ. P. 20(a), 24(b),
25(a); Fed. R. App. P. 43(a)). Under the LMRDA, although
the right of access to information may be prosecuted in the
name of just one union member, it is viewed as a commonly
held right that can be pursued by other members as well. In
this case, however, Frank Sinito could not have joined his
father's original lawsuit. Thomas Sinito did not bring a
lawsuit under FOIA to acquit a right that was also violated as
to his son. In addition, the FOIA requires each requestor to
exhaust administrative remedies, see Oglesby v. United States
Dep't of the Army, 920 F.2d 57 (D.C. Cir. 1990), and Frank
Sinito unquestionably did not do so.

Frank Sinito might, however, substitute for his father if he
is found to be his father's legal representative under Rule 25.
We have previously held that the purpose of the 1963 amend-
ments to Rule 25, which replaced a harsher prior rule regard-
ing proper party plaintiffs, was " 'to liberalize the rule and to
allow flexibility in substitution of parties.' " McSurely v.
McClellan, 753 F.2d 88, 98-99 (D.C. Cir. 1985) (per curiam)
(citation omitted). Although it is generally accepted that the

proper party for substitution must be a "legal representative"
of the deceased, see 7C Wright, Miller & Kane, at s 1956
(citing Mallonee v. Fahey, 200 F.2d 918, 919 (9th Cir. 1952)
(opinion of Circuit Justice Douglas)), the addition of the word
"successor" to the rule means that a proper party need not
necessarily be the appointed executor or administrator of the
deceased party's estate. See Rende v. Kay, 415 F.2d 983, 986
(D.C. Cir. 1969) (compelling a plaintiff to "institut[e] machin-
ery in order to produce some representative of the estate ad
litem" would contravene the purpose of Rule 25 as amended).
Thus, we have held not only that an executor or administrator
of a decedent's estate is a proper party for substitution, but
also that the distributee of a decedent's estate may be a
"successor" of an estate that has been distributed and thus
can be a proper party. See McSurely, 753 F.2d at 98-99
(listing cases); Rende, 415 F.2d at 985. Since there is no
record evidence on whether Frank Sinito is a proper party for
substitution under Rule 25, we remand the case to the district
court to determine if he qualifies under the Rule.

Restricting substitution to Thomas Sinito's "successor[ ] or
representative[ ]" goes a long way toward assuaging the
government's concern that allowing a FOIA case to survive
the death of the requestor would allow "any person," 5 U.S.C.
s 552(a)(3), to step into the shoes of the decedent. It is
axiomatic that Rule 25 limits properly substituted parties to
those individuals who can adequately represent the interests
of the deceased party. Under the FOIA, for example, a
person who requests records pertaining to himself has rights
that will sometimes--albeit rarely--differ from those of oth-
er, third-party requestors. See Reporters Committee, 489
U.S. at 771 ("Except for cases in which the objection to
disclosure is based on a claim of privilege and the person
requesting disclosure is the party protected by the privilege,
the identity of the requesting party has no bearing on the
merits of his or her FOIA request."). The FOIA was "clearly
intended ... to give any member of the public as much right
to disclosure as one with a special interest [in a particular
document]," NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149 (1975), but a privilege or privacy exemption that would

block disclosure of documents requested by a third party
might not always apply with equal force when the requestor
is the subject of the sought-after documents. See, e.g.,
United States Dep't of Justice v. Julian, 486 U.S. 1, 14 (1988)
("there is good reason to differentiate between a governmen-
tal claim of privilege for presentence reports when a third
party is making the request and such a claim when the
request is made by the subject of the report"); Reporters
Committee, 489 U.S. at 771 ("the FBI's policy of granting the
subject of a rap sheet access to his own criminal history is
consistent with its policy of denying access to all other
members of the general public"). This court has also recently
held that the death of a person who is a subject of the
requested material does not extinguish all of that person's
privacy-related interests; accordingly a court must "account
for the fact that certain reputational interests and family-
related privacy expectations survive death." Campbell v.
United States Dep't of Justice, 164 F.3d 20, 33 (D.C. Cir.
1998). Moreover, the estate of a deceased requestor may
have an interest in attorneys' fees to be recovered under the
Act, as well as an interest in the waiver of any duplicating
fees for which the requestor might have been eligible under
the statute, see 5 U.S.C. s 552(a)(4)(A)(iii). Restricting the
class of individuals who can substitute for the original re-
questor to "successors" and "legal representatives" strikes a
balance, limiting substitution to "proper parties" in compli-
ance with Rule 25(a)(1) while at the same time protecting any
surviving rights of the requestor.

Finally, we take note of the government's acknowledgment
in oral argument that Rule 25 substitution would not create
extra work on the government's part or otherwise impede its
interests. Indeed, it would seem to us more expeditious from
the government's point of view to allow the appeal to be
pursued on the record already made than to begin the
process all over again with a new requestor.

Conclusion

For the reasons outlined above, we hold that a FOIA cause
of action may survive the death of the requestor, and we

remand this case for the district court to determine whether
Frank Sinito, the requestor's son, can properly substitute for
his deceased father under Rule 25.

So ordered.