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Javier Mendez Velasquez, A/K/A Gilberto v. Dea Headquarters Unit (Saro)

February 25, 2013

JAVIER MENDEZ VELASQUEZ, A/K/A GILBERTO BENITEZ, PLAINTIFF,
v.
DEA HEADQUARTERS UNIT (SARO), U.S. DEPARTMENT OF JUSTICE, KATHERINE L. MYRICK, DEFENDANTS.



The opinion of the court was delivered by: Hon. Gonzalo P. CURIELUnited States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION [DKT. NOS. 32, 35, 39]

INTRODUCTION

On April 15, 2011, Javier Mendez Velasquez, a.k.a. Gilberto Benitez ("Plaintiff"), filed a Petition for "Writ of Mandate and Declaratory Relief" against Defendants Drug Enforcement Administration Headquarters Unit ("SARO"), the U.S. Department of Justice ("DOJ"), and Katherine L. Myrick ("Myrick"), pursuant to the Freedom of Information Act and Privacy Act ("FOIA") for failure to comply with a document request. (Dkt. No. 1.) Presently before the Court is a motion to dismiss for lack of subject matter jurisdiction filed by the Defendants. (Dkt. No. 32.) Plaintiff opposed the motion, (Dkt. No. 33), and Defendants replied, (Dkt. No. 36). Having considered the parties' submissions and applicable law, the Court GRANTS Defendants' Motion to Dismiss for the reasons that follow.

BACKGROUND

Plaintiff, proceeding pro se, is currently serving a life sentence at the Soledad Correctional Facility for possession of marijuana.*fn1 On July 22, 2009, Plaintiff made a request to the DOJ and the Drug Enforcement Administration ("DEA") for a copy of the "Laboratory Analysis Comparison Report" ("the Report") related to his conviction. Plaintiff received an initial response from the DOJ on October 28, 2009, providing Plaintiff with a case number. Plaintiff wrote a second letter to the DEA on November 14, 2009, to notify of an address change and bring attention to the fact that the October 28th response listed the file number as R6-95-0350 instead of the "right file Laboratory number" R2-95-0350. Plaintiff's third and fourth letters, sent on October 19, 2010, and March 24, 2010, were sent to Myrick, the Chief of Freedom of Information Operations Unit for the DEA, requesting fee information and inquiring whether she was aware of the incorrect file number in the October 28, 2009 letter.

Plaintiff received a response dated April 2, 2012, stating that the DEA located "three pages that contain information that was furnished by another government agency" and that no further action would be taken per Plaintiff's FOIA request. (Dkt. No. 17 at 1-2: 26-28, 1-5.) The DEA referred the three pages to the United States Customs and Border Protection ("CBP") to determine whether the documents should be released to Plaintiff. (Dkt. No. 32-1 at 2: 14-15.) On April 15, 2011, Plaintiff filed a Petition for a "Writ of Mandate and Declaratory Relief"*fn2 to compel the DEA and Myrick to assist Plaintiff with obtaining the records he had requested, as well as provide an explanation for the delay. Plaintiff claimed the DEA and Myrick failed to comply with his request for a verified copy of the Report pursuant to FOIA, citing 5 U.S.C. §552. On April 18, 2012, CBP released three pages of laboratory test results to Plaintiff. (Dkt. No. 32 at 3.) Prior to release, the documents were reviewed by DEA counsel to "insure that [Plaintiff's] request reasonably describes records, that a search calculated to uncover all responsive information was performed, and that all releasable information was provided to a requester. If not, action is taken to cure any deficiencies." (Dkt. No. 32-2 at 3: 1-4.)

Upon Defendants' motion to dismiss for "mootness" and lack of subject matter jurisdiction, (Dkt. No. 32), Plaintiff filed an opposition arguing his FOIA claim is not moot because the Defendants released fake documents. (Dkt. No. 33 at ¶ 3.) To support his claim, Plaintiff identifies particular document discrepancies: Plaintiff states the printed number on the Report is "1" while the number on the CBP report is "4"; Plaintiff alleges the CBP report contains "altered and enhanced" letters; and Plaintiff cites discrepancies between signatures of the documents. (Dkt. No. 33 at ¶¶ 2, 4.) Plaintiff filed a motion for an evidentiary hearing and a motion to appoint a handwriting expert. (Dkt. Nos. 35 and 39.) Defendants filed a reply, again in support of the motion to dismiss for lack of subject matter jurisdiction. (Dkt. No. 36.) Defendants additionally filed information compiled by DEA counsel, "[i]n order to alleviate [Plaintiff's] concerns," and to explain the appearance of the Report. (Dkt. No. 36-1.)

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 12(b)1 permits a party to raise by motion the defense of "lack of subject matter jurisdiction." Fed. R. Civ. P. 12(b)1. In this Circuit, a "mootness" claim is properly raised with a 12(b)(1) motion. See Gemtel Corp. v. Community Redevelopment Agency, 23 F.3d 1542, 1544 n.1 (9th Cir. 1994) (finding "mootness" and "ripeness" properly challenged under Rule 12(b)(1)). A claim is moot when "it has lost its character as a present, live controversy," for instance, when an administrative agency has performed the action sought by a plaintiff and the federal court has no authority grant effective relief. Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting Am. Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997)). The court does not have jurisdiction over a moot claim. Id.

II. Analysis

A. Appropriate Defendants Under FOIA

FOIA authorizes the district court to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." 5 U.S.C. ยง552(a)(4)(B) (emphasis added). The proper defendant in a FOIA action is the federal agency, not the individual employees of the agency. Hajro v. U.S. Citizenship & Immigration Services, 832 F.Supp.2d 1095, 1104 (N.D. Cal. 2011). Myric, as an employee of a ...


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