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Frost v. Wilkinson

United States District Court, N.D. California, San Francisco Division

July 5, 2017

VINTON P. FROST, Plaintiff,


          LAUREL BEELER United States Magistrate Judge.


         This is 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.[1] The defendant now moves to dismiss the complaint or, alternatively, for summary judgment.[2] The parties have consented to magistrate jurisdiction.[3] 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.


         In 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."[4] In early May 2017, the EOUSA answered Mr. Frost's FOIA request.[5] It explained that it had searched the USAO-NDCA's files and found "no responsive records."[6]

         The 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, [7] and that of Patricia Mahoney, the USAO-NDCA legal assistant who actually conducted the search.[8] 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 USAO/NDCA.[9]

         Ms. Mahoney reports that her search returned "nothing responsive."[10] 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."[11]

         The 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.[12] He alleges that the EOUSA erroneously declared that it completed his request.[13] (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."[14]) Mr. Frost seeks an injunction ordering the EOUSA "to respond to his FOIA request in compliance with statutes and laws."[15]


         The defendant moves to dismiss the plaintiff's claim as moot and for naming the wrong defendant.[16] Alternatively, it moves for summary judgment against the complaint.[17] The court addresses these arguments in turn.

         1. Mootness

         The 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.[18] "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)).

         The 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 1173.

         2. Improper Defendant

         The EOUSA also argues that defendant Monty Wilkinson is an improper party.[19] (Mr. Wilkinson writes that he is an "employee" of the EOUSA.[20]) 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.

         With no 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 ...

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