Notice & Comment

“The Fugitive:” ICE, Fugitives, and FOIA (Part II)

This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens.  My first post discussed the policy’s inconsistency with FOIA Exemption 7(A).  This post discusses whether the “fugitive disentitlement doctrine.”

The Fugitive Disentitlement Doctrine

In Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993), the Supreme Court observed that “[i]t has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal,” id. at 239, citing Smith v. United States, 94 U.S. 97 (1876), as its earliest invocation of the doctrine.  The Court’s fugitive disentitlement jurisprudence, Bohanan v. Nebraska, 125 U.S. 692 (1887), Eisler v. United States, 338 U.S. 189 (1949), and Molinaro v. New Jersey, 396 U.S. 365 (1970), inter alia, seems to center around cases in which criminal defendants seek to appeal their convictions while at large.  The classic cases do not involve efforts to pursue civil litigation while a fugitive from criminal obligations, much less efforts to pursue civil litigation by those who have defaulted on a civil obligation. 

Granted, the right to appeal a criminal conviction has a constitutional dimension that much of civil litigation does not share, M.L.B. v. S.L.J., 519 U.S. 102, 110-116(1996)(discussing the Courts “right of access to courts” jurisprudence),[1] suggesting that the court should be less reticent in precluding fugitives from justice from pursuing most civil lawsuits and appeals.  On the other hand, refusal to stand trial or accept punishment on criminal charges represents a more serious abnegation of governmental authority than failure to comply with a civil obligation, suggesting that disentitlement should not extend to those in default on civil obligations.  In whatever context it is applied, the fugitive disentitlement doctrine has a cost, an erroneous judgment may go unreversed or a wrong unredressed.  See, Degen v. U.S., 517 U.S. 820, 824 (1996).[2]

The Supreme Court has identified two primary rationales supporting federal courts’ application of the rule: (1) concerns regarding the enforceability of a judgment against a fugitive[3] and (2) a type of “unclean hands” principle, namely that a person who escapes from the restraints placed upon him pursuant to the conviction is “disentitle[d] . . . to call upon the resources of the Court for determination of his claims.” Ortega-Rodriguez, 507 U.S. at 241; accord, Degen v. U.S., 517 U.S. at 828. Even in Molinari, one of the Court’s strongest affirmations of the doctrine, the Court recognized that a statute could make the rule inapplicable.  Molinaro, 396 U.S. at 366; see, Degen, 517 U.S. at *24. [4]

Reviewing the Court’s decisions involving state applications of common law and statutory fugitive disentitlement rules, the Ortega-Rodriguez majority noted that the Court had upheld state application of the doctrine in two significant cases.  First, it had upheld a Georgia court’s dismissal of a fugitive’s appeal, and refusal to reinstate it even after his recapture.  And almost 80 years later, it had upheld a Texas statute providing for automatic dismissal when a defendant escapes during the pendency of his appeal, unless the defendant voluntarily returns within 10 days.  In that case the defendant had also been recaptured.  Ortega-Rodriguez, 507 U.S. at 241(citing Allen v. Georgia, 166 U.S. 138, (1897), and Estelle v. Dorrough, 420 U.S. 534 (1975)).  In Estelle v. Dorrough, the Court had explained that such fugitive disenfranchisement rules “discourage[] the felony of escape and encourages voluntary surrenders,” inter alia,  thus providing a third more policy-oriented rationale for the doctrine. 420 U.S. at 537; accord, Ortega-Rodriguez, 507 U.S. at 241.

But Ortega-Rodriguez was perceived to have significantly changed the doctrine, limiting its application, see, Daccarett-Ghia v. Commissioner, 70 F.3d 621 (D.C. Cir. 1995).  In Ortega-Rodriguez the Court reviewed the Eleventh Circuit’s rule of automatic dismissal based on a defendant’s evasion of authorities, even though the defendant in question had fled during the trial court proceedings and been recaptured by the time his case was on appeal.  Ortega-Rodriguez, 507 U.S. at 235-36, 242.  In that particular context, where the defendant was not still at large, the Supreme Court stressed the need for a connection between the defendant’s evasion of authorities and the proceeding.  Id. at 244, 249.[5] It found none because: (1) upon recapture the order could be enforced, (2) consideration of the disrespect exhibited toward judicial authority should be limited strictly to the court whose exercise of jurisdiction was frustrated by the individual’s escape, and (3) other sanctions could provide sufficient deterrence to those tempted to abscond.  Id. at 244-48.

Four years later, in Degen v. U.S., the Court considered the fugitive entitlement doctrine in the civil context most closely related to criminal prosecutions, namely civil forfeiture actions.  A federal grand jury indicted Brian Degen for distributing marijuana and laundering money, inter alia.  The government filed a civil forfeiture complaint seeking $5.5 million in property Degen had either purchased with proceeds of his drug sales or used to facilitate those sales.  Degan had decamped to Switzerland before the indictment and forfeiture complaint were unsealed (and quite possibly before the case had been presented to the grand jury), apparently retiring from active participation in the business.  He declined the opportunity to return to face the criminal charges.  He did however, file an answer in the civil forfeiture action.  The District Court struck the answer, based on Degen’s fugitive status, and ultimately entered a forfeiture order. 

The Supreme Court unanimously concluded that the lower court erred in applying the fugitive disentitlement doctrine to the case.  The Court noted that depriving individuals of the “right to a hearing to contest the forfeiture of his property” had Due Process Clause implications.  517 U.S. at 822, 828.  In the Court’s view, the question presented was whether the fugitive disentitlement doctrine “should be extended to allow a court adjudicating a civil forfeiture suit to enter judgment against a claimant because he is a fugitive from, or otherwise is resisting, a related criminal prosecution.”  Id. at 823.  The Court used the analysis it had employed in Ortega-Rodriguez, holding that a blanket approach to dismissal of fugitive civil forfeiture defendants’ pleadings was improper.  Id. at 824-25.  Rather such a dismissal order could be issued only when the fugitive’s conduct prejudiced the proceedings and when there were insufficient means to address any potential prejudice.  Id. at 827.  The Court concluded that dismissal was far too blunt a response given the absence of enforceability problems and the alternative means to address any unfair advantage defendant might enjoy by virtue of his fugitive status.  Id. at 828, 829.  Even though the case was a civil suit, Degen was the defendant, and the government was invoking judicial processes to seek relief, namely forfeiture of property, while precluding Degen from raising potentially valid defenses.

Several Circuits have applied the fugitive disentitlement doctrine to appeals of immigration rulings.[6]  The doctrine appears quite robust, but exploring the interstices of the application doctrine in immigration proceedings is beyond the scope of this blogpost.

FOIA and the Fugitive Entitlement Doctrine

Does the fugitive disentitlement doctrine preclude fugitives refusing to face criminal charges or avoid incarceration following conviction, or aliens in violation of requirements imposed by immigration authorities, from seeking documents from the government under FOIA?  In Degan, the Supreme Court observed that although the federal courts “have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities,” the “extent of these powers must be delimited with care.”  517 U.S. at 823. 829.  In particular it noted the “danger of overreaching when one branch of the Government, without benefit of cooperation or correction from the others, undertakes to define its own authority.” Id. at 823.  Degen suggests a presumption against broad application of the fugitive disentitlement doctrine, particularly in the context of civil litigation.  But with respect to FOIA, there is more.

FOIA’s statutory text can quite naturally be read to preclude application of the fugitive disentitlement doctrine.  FOIA provides that any person may obtain agency records and does not expressly exempt those who are fugitives from federal or state authorities.  5 U.S.C. §552(a)(3)(A).[7]  And indeed, in 2002 Congress amended FOIA to exclude one type of requester, foreign governments and their representatives.  5 U.S.C. §552(a)(3)(E).[8]  Federal law stands in stark contrast to public records statutes in some states that specify that only citizens of the state can request public records,[9] or expressly limit incarcerated persons’ right to avail themselves of public records laws.[10]    

Moreover, application of the fugitive disentitlement doctrine would arguably frustrate FOIA’s purposes and might well ultimately prove self-defeating.  First, as to FOIA’s purposes. FOIA is premised upon a “structural necessity in a real democracy,” namely the people’s right to know “‘what their Government is up to.’”  Nat’l Archives & Records v. Favish, 541 U.S. 157, 171-72 (2004)(quoting Department of Justice v. Reporters’ Committee for Freedom of the Press, 489 U.S. 749, 773 (1989)).  Under FOIA, a requester’s identity does not matter, because FOIA effectuates a policy of making information sought by a particular requester available to all.  Id. at 172; Yonemoto v. Department of Veteran Affairs, 686 F.3d 681, 689-90 (2011);[11] Sikes v. Department of the Navy, 896 F.3d 1227, 1234-35 (11th Cir. 2018).  Thus, the requester is presumed to be vindicating not just his own interest, but the public’s interest in learning what the government “is up to. “ Second, such requester-specific limitation are likely to be self-defeating, because others not subject to the bar could simply file an identical request.[12]  

Granted, some of the requesters seek first-party information, namely information the government has on themselves, which may well hold little interest to anyone else or value to the public.  And they may well be using FOIA as a supplemental means of discovery with respect to pending or anticipated litigation with the federal government in either a judicial or administrative forum.  This appears to be the case with respect to many FOIA requests made by aliens or their counsel.  And unlike in Degen, where the Court was also concerned about fugitives’ avoidance of the limitations on discovery in criminal cases, 517 U.S. at 825-27, in FOIA cases courts have somewhat less discretion to manage disclosures required by FOIA.[13]  Note, however, requiring  responses to such requests may facilitate the efficient resolution of an alien’s status, by allowing the alien’s lawyer to better evaluate the case and focus on meritorious applications for relief.

In any event, on the whole, FOIA’s text and underlying rationale would seem to suggest that application of the fugitive disentitlement doctrine is neither authorized nor appropriate.

Nevertheless, in a leading case, Doyle v. DOJ, 668 F.2d 1365 (D.C. Cir. 1981) (per curiam), cert. denied, 455 U.S. 1002, (1982), the D.C. Circuit applied the disentitlement doctrine to permit the agency to ignore a fugitive’s FOIA request.  But Doyle was decided pre-Ortega-Rodriguez.  Doyle was, of course, distinguishable from Ortega-Rodriguez in a critically-important respect, because Doyle remained a fugitive and had not been recaptured.  On the other hand, the consequences of denying an as-of-right appeal of a criminal conviction, at issue in Ortega-Rodriguez, are far more serious sanction than a refusal to entertain a FOIA request.

However, in Daccarett-Ghia v. Commissioner, 70 F.3d 621 (D.C. Cir. 1995), the D.C. Circuit suggested that Ortega-Rodriguez had largely overturned Doyle, except, curiously, in one respect that might be particularly relevant to FOIA.  Daccarett-Ghia involved an effort to seek redetermination of a tax obligation in the Tax Court.  Id. at 623.  The same obligation had been the basis of an indictment against plaintiff in federal district court in New Jersey.  Id. at 623-24, 627.  Daccarett-Ghia, like Doyle, differed from Ortega-Rodriguez,because plaintiff had not been recaptured.  The Court required a nexus, even though Ortega-Rodriguez had suggested that a party’s ongoing fugitive status provides a sufficient nexus, Ortega-Rodriguez, 507 U.S. at 249. 

The Court found no nexus.  Appellant’s presence was not required at the Tax Court’s proceedings; foreign nationals residing abroad were entitled to pursue petitions for redetermination in the Tax Court.  Appellant had not significantly interfere with the Tax Court’s processes, by, for instance, refusing to provide discovery material.  And “the Commissioner has not established that appellant’s status jeopardizes the enforceability of the Tax Court’s eventual judgment.”  In any event, the Tax Court had not cited potential unenforceability of a judgment against appellate as a basis for invoking the fugitive disentitlement doctrine.  Id. at 628. 

But puzzlingly, the Court dropped a footnote that seemed to suggest that Doyle might remain good law in the FOIA context.

Doyle did recognize one universally applied constraint on the fugitive disentitlement doctrine. Dismissal was appropriate in part because the fugitive’s civil suit sought records that were “not devoid of a relationship” to the criminal charges pending against him, i.e., the subject matters of the civil and criminal cases were not completely divorced from each other.  . . Our holding in this case does not disturb that aspect of Doyle.[14]

In Lazaridis v. U.S. Department of Justice, 713 F. Supp. 2d 64, 69-70 (D.D.C. 2010), a District Judge ruled that fugitive disentitlement did not apply with respect to a FOIA request for Social Security files.  And her ruling suggested that the requisite nexus between fugitive status and adjudicating a FOIA case would rarely exist.  In particular, because “[p]ractically all FOIA cases are decided on the papers, and discovery is rare,” Lazaridis’ presence would likely not be required.  Id. at 69.  Moreover, because FOIA decisions typically turn on the sufficiency of the government’s declarations, DOJ would be hard-pressed to assert prejudice based solely on Lazaridis’ absence from this jurisdiction.  Id.  Of course, much of the same reasoning would apply to criminal appeals, which are decided on a record and do not require defendant’s participation, yet the fugitive disentitlement doctrine was developed precisely in that context.  In Lazaridis, the Judge also offered another reason for the lack of nexus — there would be few enforceability problems because only the government is likely to have any obligation under FOIA.  Id. at 69, n.6.  Granted, enforceability concerns significantly distinguish FOIA litigation from criminal appeals. But the distinction arises not because the fugitive party is more likely to comply, i.e., not because the fugitive is more deserving of judicial solicitude, but because the obligations will most likely fall on the government.[15]

However, decisions in the Eastern District of Pennsylvania and the Third Circuit suggest that courts in that Circuit continued to view Doyle as good law, despite the Supreme Court’s subsequent decisions in Ortega-Rodriguez and Degen.   Maydak v. United States Dep’t of Educ., No. 04-4436, 2005 U.S. App. LEXIS 20292 (3d Cir. Sept. 21, 2005); Meddah v. Reno, No. 98-1444, 1998 U.S. Dist. LEXIS 23620 (E.D. Pa. Dec. 8, 1998).

It does seem odd that a person who shows fundamental disrespect for legal processes by refusing to stand trial or absconding to avoid incarceration can invoke those same processes to compel agencies to expend considerable resources to respond to information requests, particular ones narrowly focused on their own interests.[16]  FOIA obligations impose substantial costs on government, and the government recoups a trivial portion of that cost.  For example, in fiscal year 2018 the Department of Justice reported that agencies had recouped less than 1% of the $545,510,147.08 in costs attributable to FOIA compliance.[17] 

Of course, there are different types of fugitives, and those who abscond from facing criminal charges are the least sympathetic (the fictional Dr. Richard Kimble notwithstanding).  Some aliens considered to be in fugitive status may present a more sympathetic case for a refusal to ban all access to FOIA processes.  ICE’s definition of “fugitive” status for purposes of its policy regarding responses to FOIA requests from fugitives is quite broad.

Daccarett-Ghia and Lazaridis may well read Ortega-Rodriguez too broadly.  The Supreme Court may accord more importance to the disrespect for law fugitives that continue to evade governmental authorities exhibit.  It may well hold that as a basis for barring fugitive still at large from the privilege of access courts to pursue civil litigation.[18]  Such an approach is all the more likely with respect to suits that do not seek compensation for a wrong specific to the individual, like a tort or contract action, but to vindicate a public interest in access to information.   

Nevertheless, FOIA’s text and purposes suggest that no fugitive disentitlement doctrine applies, and if it is to apply it should be because Congress provides a clear affirmative expression that is should do so.

[1] Compare Ortwein v. Schwab 410 U.S. 656 (1973)(filing fee to obtain appellate review of an administrative decision to reduce welfare benefits permissible); U.S. v. Kras, 409 U.S. 434(1973)(filing fee to institute bankruptcy proceedings permissible), with Douglas v. California, 372 U.S. 353(1963)(state must provide appellate counsel for first as-of-right appeal); Griffin v. Illinois, 351 U.S. 12 (1956)(charging criminal defendant for transcript of trial proceedings necessary to pursue an appeal impermissible).

[2] Outside the fugitive appeal context, if an appeal cannot be decided because the controversy has been rendered moot, upon proper request, not only is the appeal dismissed, but the appellate court orders vacatur of any decisions below.  United States v. Munsingwear, Inc., 340 U.S. 36 (1950); 13C Edward H. Cooper, Federal Practice & Procedure §3533.10 (3d ed.).  The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences.”  Camreta v. Greene, 563 U.S. 692, 713 (2011).  Of course, the rule is discretionary and often does not apply when the party seeking vacatur is responsible for the mootness. Federal Practice & Procedure, at §3533.10.1.

[3] But in other contexts, the Court has proclaimed that “courts often adjudicate disputes where the practical impact of any decision is not assured.”  Chafin v. Chafin. 568 U.S. 165, 175 (2013).  In Chafin, the party claiming mootness had taken her child to Scotland, and was unlikely to return to the United States if the Alabama court ordered her to return the child to his father.  She had left for Scotland hours after a ruling granting custody to her.

[4] In Molinaro the court observed: “[i]n the absence of specific provision to the contrary in the statute under which Molinaro appeals . . . we conclude . . . that the Court has the authority to dismiss the appeal [based on the fugitive disentitlement doctrine].”  Similarly, in Degen, the Court explained: “[i]n many instances the inherent powers of the courts,” of which dismissal pursuant to the fugitive entitlement doctrine is one, “may be controlled or overridden by statute or rule.”

[5] The Court said: “we conclude that while dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system. Absent some connection between a defendant’s fugitive status and his appeal, as provided when a defendant is at large during “the ongoing appellate process,” the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply.

[6] E.g., Martin v. Mukasey, 517 F.3d 1201, 1204 (10th Cir. 2008).  The Second, Third, Seventh, and Ninth Circuits have also extended the doctrine to the context of immigration appeals, see, Emily Creighton, The Fugitive Disentitlement Doctrine: FOIA And Petitions For Review 2 (Legal Action Center, American Immigration Council updated April 29, 2013)See generally, Patrick J. Glen, The Fugitive Disentitlement Doctrine and Immigration Proceedings, 27 GEO. IMM. L.J. 749 (2013); Lawrence Serkin Winsor, Runaway Usance: Limiting the Exercise of the Fugitive Disentitlement Doctrine in the Context of Wenqin Sun v. Mukasey and Bright v. Holder, 47 GA. L. REV. 273 (2012).

[7] FOIA’s initial drafters may have assumed that the fugitive disentitlement doctrine would apply to FOIA litigation, viewing the doctrine as a background norm against which any federal statute would be read.  But there does not appear to be any Supreme Court authority suggesting that the fugitive disentitlement doctrine would apply so broadly.  Most likely, members of Congress simply did not consider the issue when enacting FOIA.

[8] See, All Party Parliamentary Group on Extraordinary Rendition v. U.S. Department of Defense, 754 F.3d 1047 (D.C. Cir. 2014).

[9] Ala. Code § 36-12-40 (Alabama); Ark. Code Ann. § 25-19-105(a)(1)(A) (Arkansas); N.H. Rev. Stat. Ann. § 91-A:4(I) (New Hampshire); Tenn. Code Ann. § 10–7–503(2)(a) (Tennessee); Va Code Ann. § 2.2–3704(A) (Virginia). However, the attorney generals of Alabama and New Hampshire have determined that their laws would permit access by any U.S. citizen.  Ala. Op. Att’y Gen. No. 2001-107 (Mar. 1, 2001); Memorandum from N.H. Att’y Gen., New Hampshire’s Right-To-Know 36 n.23 (2015).  For a discussion of basis for extending access to state public records beyond the citizenry of the state, see Bernard W. Bell, Entitlement to Public Records: Beyond Citizenship, 2015 INTERNATIONAL JOURNAL ON OPEN GOVERNMENT 311 (2015)(Proceedings for the 10th International Symposium on the Law and Open Government (Paris, France), Les Editions IMODEV).

[10] La. Rev. Stat. Ann. § 44:31.1; Mich. Comp. Laws Ann. § 15.232(g); Tex. Gov’t Code Ann. § 552.028; Va. Code Ann. § 2.2-3703(C); Wis. Stat. Ann. §19.32(3).

[11] The Court explained: “FOIA provides every member of the public with equal access to public documents and, as such, information released in response to one FOIA request must be released to the public at large,” thus “FOIA does not permit selective disclosure of information only to certain parties.”  Id.

[12] All Party Parliamentary Group, 754 F.3d at 1049 (the foreign government entity exception “is unlikely to pose a serious barrier to the release of unclassified records,” since precluded requesters merely need “wait[] for a likeminded requester to seek the same information”).

[13] The Degen Court noted that a District Court can (1) “enter protective orders limiting discovery as the interests of justice require,” (2) “exercise its discretion to manage the civil litigation to avoid interference with the criminal case” by limiting the forms of proof required or even precluding the absent party from pursuing certain theories, or (3) exposing the absent party to the sanctions available against uncooperative parties who do not comply with “legitimate order[s] of the court respecting pleading, discovery, the presentation of evidence, or other matters.” Id.  Given the unique nature of FOIA cases, namely involving little discovery and rarely involving trial-type proceedings, at best the third means listed will be the only meaningful remedy.

[14] Id. at 626, n.4.

[15] But of course, in Degen the fact that the absence of enforceability problems in a civil forfeiture case had nothing to do with the absconding party’s respect for judicial process was irrelevant.  There, enforceability weighed against application of the fugitive disentitlement rule because the property the government sought to forfeit was within the jurisdiction and thus under the court’s control, even though the defendant was not. 517 U.S. at 825.

[16] See, Degen, 517 U.S. at 828 (“we acknowledge disquiet at the spectacle of a criminal defendant reposing in Switzerland, beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be honored”).


[18] Even in Degen, the fugitive had not initiated the litigation; the Government had.  The fugitive disentitlement doctrine would essentially have allowed the government to prevail in a civil case while the defendant was barred from asserting valid defenses to its claims.  Contrastingly, in FOIA cases the fugitive initiates the litigation.

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