United States District Court, N.D. California, San Francisco Division
VINTON P. FROST, Plaintiff,
MONTY WILKINSON, Defendant.
ORDER DISMISSING COMPLAINT [RE: ECF NOS. 12, 36,
BEELER United States Magistrate Judge.
a case under the Freedom of Information Act
("FOIA") (5 U.S.C. § 551 et seq.).
Plaintiff Vinton P. Frost requested records from the
Executive Office for United States Attorneys
("EOUSA"). The agency conducted a FOIA search and
told Mr. Frost that it had no documents responsive to his
request. Not believing this answer, Mr. Frost filed this
suit. He claims that EOUSA "improperly withheld"
responsive information. The defendant now moves to dismiss the
complaint or, alternatively, for summary
judgment. The parties have consented to magistrate
jurisdiction. The court can decide this motion without
oral argument. See Civil L.R. 7-1(b). Because Mr.
Frost has not named a proper defendant, the court grants the
motion to dismiss. The plaintiff has 28 days in which to
filed an amended complaint that names a proper defendant. The
court also addresses the merits of the plaintiff's claim.
January 2017, Mr. Frost made a FOIA request to the EOUSA. He
asked the EOUSA to provide him with "all documents"
maintained in the Office of the United States Attorney for
the Northern District of California ("USAO-NDCA")
"pertaining to or referencing me, Vinton
Frost." In early May 2017, the EOUSA answered Mr.
Frost's FOIA request. It explained that it had searched the
USAO-NDCA's files and found "no responsive
defendant has filed two sworn declarations that more fully
explain the steps that the EOUSA took to search for material
that answered Mr. Frost's FOIA request. Specifically, the
defendant has filed the declaration of Tricia Francis, the
EOUSA attorney who oversaw the document search,
that of Patricia Mahoney, the USAO-NDCA legal assistant who
actually conducted the search. Ms. Mahoney explains that she
reviewed the USAO-NDCA's "official files and
records" as follows:
Under the supervision of USAO/NDCA FOIA Contact, [Assistant
United States Attorney] Laurie Kloster Gray, I reviewed Mr.
Frost's letters . . . and conducted a name search on the
two USAO programs, Alcatraz and Caseview, used for
researching and locating case matters in the USAO/NDCA. My
standard practice is to access these two programs to process
FOIA matters. This search would have located any civil or
criminal matters involving Mr. Frost handled by the
Mahoney reports that her search returned "nothing
responsive." She concludes by explaining:
"[T]here are no other places within the custody and
control of the USAO/NDCA where the requested information is
likely to be found."
plaintiff then filed this suit. He claims that the EOUSA -
or, more exactly, its director, defendant Monty Wilkinson -
"has been negligent in his duties to comply with"
FOIA. He alleges that the EOUSA erroneously
declared that it completed his request. (In opposing
the defendant's motion, tracking the requirements for a
viable FOIA claim, the plaintiff adds that the EOUSA
"improperly withheld" documents - perhaps even
classifying them so as to put them "out of reach from
FOIA requests.") Mr. Frost seeks an injunction ordering
the EOUSA "to respond to his FOIA request in compliance
with statutes and laws."
defendant moves to dismiss the plaintiff's claim as moot
and for naming the wrong defendant. Alternatively, it moves
for summary judgment against the complaint. The court
addresses these arguments in turn.
defendant first argues that its response to Mr. Frost's
FOIA request moots his claim and deprives this court of
subject-matter jurisdiction over this case. "The
Ninth Circuit, " the defendant argues, "has held
that an action for production of documents pursuant to FOIA
becomes moot once the requested documents have been produced,
regardless of when they are produced." (ECF No. 36 at 6)
(citing Papa v. United States, 281 F.3d 1004, 1013
(9th Cir. 2002)); see generally, e.g. Rosmere
Neighborhood Ass'n v. United States Envmtl. Protection
Agency, 581 F.3d 1169, 1172-73 ("In general, when
an administrative agency has performed the action sought by a
plaintiff in litigation, a federal court ‗lacks the
ability to grant effective relief, ' and the claim is
moot.") (quoting Pub. Util. Comm'n v. FERC,
100 F.3d 1451, 1458 (9th Cir. 1996)).
court understands the defendant's mootness argument but
does not think that it quite applies here. The plaintiff is
not merely demanding that the EOUSA do something that it has
already done (conduct a FOIA search); he is claiming that
that search was somehow inadequate. (Because it
"improperly withheld" perhaps
"classified" documents.) At least notionally, that
is a live dispute. If it were shown that the EOUSA did refuse
to turn over documents that it possessed, then the court
could order the agency to product that material to Mr. Frost.
The court could, in other words, "grant effective
relief." See Rosmere Neighborhood, 581 F.3d at
EOUSA also argues that defendant Monty Wilkinson is an
improper party. (Mr. Wilkinson writes that he is an
"employee" of the EOUSA.) The USAO-NDCA points
out, "correctly, that under the FOIA, only agencies are
proper parties to FOIA actions." See, e.g., Bay Area
Lawyers Alliance For Nuclear Arms Control v. Dep't of
State, 818 F.Supp. 1291, 1294 (N.D. Cal. 1992) (citing 5
U.S.C. § 552(a)(4)(B)). This defendant is therefore
dismissed from this action. See id.
other defendant before the court, that effectively disposes
of the complaint. The complaint is dismissed without
prejudice. The plaintiff will have 28 days (from the date of
this order) to file an amended complaint that named a ...