ORDER GRANTING DEFENDANT's MOTION TO DISMISS AND DENYING CROSS MOTIONS FOR SUMMARY ADJUDICATION.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Defendant Department of Defense moves to dismiss as moot pro se Plaintiff Richard Snyder's first claim under the Freedom of Information Act (FOIA), and moves for summary adjudication of Plaintiff's second FOIA claim. Plaintiff agrees to the dismissal of his first claim, that Defendant improperly withheld an unredacted H-Series subscription list, due to Defendant's inadvertent production of the unredacted document in this litigation. The Court accordingly dismisses Plaintiff's first claim as moot. See Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986) (finding FOIA claim for injunctive relief to be moot where government agency voluntarily mailed document to plaintiff). Plaintiff opposes summary adjudication of his second claim challenging the fee charged to him by Defendant, and cross-moves for summary judgment in his favor. Defendant opposes Plaintiff's cross-motion. The matters were taken under submission on the papers.
Having considered all of the papers filed by the parties, the Court dismisses the entire Complaint for lack of subject matter jurisdiction, but grants Plaintiff leave to amend his complaint to allege an alternative basis for jurisdiction.
The following facts are drawn from the administrative record and are undisputed.
On December 4, 2003, and March 8, 2004, Plaintiff submitted FOIA requests for an electronic version of the "CAGE Code file" to the Defense Logistics Information Service (DLIS) of the Defense Logistics Agency (DLA), an agency within Defendant Department of Defense. He indicated his willingness "to pay reasonable costs that are in compliance with DLA 5400.14 for this file." He requested a "CPU meterlog showing the starting and ending CPU meter readings" for the FOIA request. In an August 17, 2004 letter, DLIS assessed the cost for processing the request at $68.04, covering seventeen minutes of professional search at $44.00 per hour, $2.41 for the "daily cost for the file," and $53.16 "for one minute and 49 seconds Central Processing Unit (CPU) time."
On June 28, 2004, Plaintiff submitted a third FOIA request for a copy of the "H-series subscription list." He again indicated his willingness "to pay reasonable costs that are in compliance with DLA 5400.14 for this file." On August 20, 2004, DLIS provided Plaintiff with a partial response to his FOIA request, but redacted "Defense Department personnel, contractors and military names" as exempt on various grounds from public disclosure. DLIS charged Plaintiff $46.10 for processing the request, which covered "one hour of professional review/excising at $44.00 per hour and 14 pages reproduced at $0.15 per page."
Defendant requests that the Court take judicial notice of two similar suits filed by Plaintiff, TPS v. Dep't of the Air Force, C 01-4284 PJH (N.D. Cal. Mar. 28, 2003), appeal docketed, No. 15950 (9th Cir. May 27, 2003) and Snyder v. Dep't of Defense, 03-4992 VRW (N.D. Cal. April 29, 2005), appeal docketed, No. 05-15893 (9th Cir. May 15, 2005). Plaintiff does not oppose the request for judicial notice, and submits a copy of Judge Vaughn R. Walker's April 29, 2005 Order finding, among other things, that Plaintiff was overcharged by $7.33 in the context of another FOIA request. The Court grants the request for judicial notice.
Plaintiff brings two claims under FOIA, 5 U.S.C. § 552. As explained above, Plaintiff's first claim for impermissible withholding of the unredacted subscription list is moot because the document at issue was inadvertently produced by Defendant. Plaintiff's second claim seeks a reduction in the fees charged to him for his FOIA requests on the grounds that the fees charged were not consistent with the requirements of FOIA, applicable DLA regulations or the Administrative Procedure Act, 5 U.S.C. § 706.
Dismissal is appropriate under Rule 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. Fed. R. Civ. P. 12(b)(1). Federal subject matter jurisdiction must exist at the time the action is commenced. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989). A Rule 12(b)(1) motion may either attack the sufficiency of the pleadings to establish federal jurisdiction, or allege an actual lack of jurisdiction which exists despite the formal sufficiency of the complaint. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
Subject matter jurisdiction is a threshold issue which goes to the power of the court to hear the case. Therefore, a Rule 12(b)(1) challenge should be decided before other grounds for dismissal, because they will become moot if dismissal is granted. Alvares v. Erickson, 514 F.2d 156, 160 (9th Cir.), cert. denied, 423 U.S. 874 (1975).
A federal court is presumed to lack subject matter jurisdiction until the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). An action should not be dismissed for lack of subject matter jurisdiction without giving the plaintiff an opportunity to amend unless it is clear that the jurisdictional deficiency cannot be cured by amendment. May Dep't Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir. 1980). Absent an independent basis, the ...