UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SINITO, FRANK

v.

DOJ


98-5227a

D.C. Cir. 1999


*	*	*


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


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


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


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 




__________

n 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


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


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


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.