Lewis v. Department of the Army et al

Filing 23

ORDER granting Defendants' 8 Motion to Dismiss; and directing that the Clerk shall terminate all motions and deadlines and close this case. Signed by Judge J. Randal Hall on 9/21/2016. (jah)

IN THE UNITED
FOR THE

STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

FRANCES GLENDA LEWIS,

*
•

Plaintiff,

*

v,

*

DEPARTMENT OF THE ARMY et al.,
Defendants.

CV

115-133

*
*

ORDER

Currently pending before the Court is Defendants' motion to
dismiss.

(Doc. 8.)

GRANTS Defendants'

For the reasons explained below,
motion.

I.

This

case

the Court

is

based

Background

on

attempt to obtain documents

Plaintiff

Frances

from Defendant

Glenda

Lewis's

Department

of the

Army.

According to Plaintiff's amended complaint, she received

notice

that

(Doc.

3

at

she

3.)

had

In

been

removed

response,

from

service

Plaintiff

in

visited

July

her

employer and requested documents related to her removal.
at

3-4.)

2014.

former

(Id.

When her employer would not provide the requested

documents,

she

claims

her

union

steward

under the Freedom of Information Act

the

time

Plaintiff

filed

her

On August 24,

September

3.)

In

8,

2015,

she

of

Eisenhower

Army

(4)

the

filed

Army;

(Id.

complaint,

request

at

At

had

she

4. )

not

(Id. )

an

(2)

Medical

Kelly

a

Plaintiff initiated this action,

her amended complaint

Department

and

2015,

("FOIA") .

amended

received the requested documents.

submitted

amended

she named as

the

Center

Elder.

complaint.

Commander

("DDEAMC");

Plaintiff

seeks

(Docs.

Defendants:

of

and on

the

(1)

1,

the

Dwight

(3)

Deborah

the

documents

D.

Woods;

she

requested, the appointment of Special Counsel, and $1,000,000.00
in compensatory damages.

In November

complaint.
Elder,

FOIA

(Doc.

2015,

Defendants moved to

8.)

First,

dismiss

Plaintiff's

the Commander of DDEAMC,

Kelly

and Deborah Woods argue that dismissal is proper because

does

Defendants

not

allow

claim

for

that

claims

dismissal

against

is

individuals.

proper

because

Second,

Plaintiff

never properly requested the documents and because her requests

for damages and a special investigator fail as a matter of law.
Plaintiff failed to timely respond to Defendants' motion,

so on May 16, 2016, the Court afforded Plaintiff an additional
fourteen days to respond.

(Doc. 15.)

On August 8, 2016, when

Plaintiff had still failed to file a response,

the Court issued

an Order informing Plaintiff that if she did not respond,

the

Court

would

dismiss

her

case

for

want

of

prosecution.

(Doc.

16.)

On August 12,

2016,

Plaintiff responded and asked the Court

not to dismiss the case.
an

attorney

requested

requested

and

that

(Doc.

the

he

same

17.)

She also represented that

information

received

the

she

had

documents.

previously

Defendants

replied and argued that Plaintiff's claim for injunctive relief
is moot.

(Doc.

19.)

Specifically,

Defendants maintain that a

records search shows that Gregory Fidlon submitted a request on
Plaintiff's behalf on March 15, 2016.

Department

of the Army

claims

documents on August 22, 2016.
Because

Defendants

that

(See Doc.

14-1.)

it released the

And the

requested

(IcL 5 11.)

raised

the

mootness

argument

for

the

first time in their reply, the Court allowed Plaintiff ten days

to respond to the argument.

Plaintiff responded and urged the

Court not to dismiss her claims.1

respond to Defendants'

(Doc.

21.)

But she did not

position that her claim for injunctive

relief is moot.

1 Plaintiff's motion also requested additional time to respond to
some of Defendants' arguments.
To the extent that Plaintiff's response can
be construed as a motion for an extension of time, it is DENIED.

II.

Discussion

1. Individual Liability

As

a

Elder,

preliminary

and

Deborah

matter,

Woods

are

subject to suit under FOIA.
582-83

(5th Cir.

Servs.,

June

No.

27,

CV

1987);

defendants

in

of agencies."); Stewart v.
*2 (S.D. Ga.

U.S.

WL

not

of

DDEAMC,

only

Kelly

agencies

Bowen,

are

833 F.3d 581,

Dep't of Health and Human

2930569,

federal

FOIA claims,

that

See Petrus v.

2014

("Only

Commander

correct

Lonon v.

412-216,

2014);

the

at

agencies

*1

n.l

qualify

(S.D.

as

Ga.

proper

individual employees or officers

Doe, CV 110-076, 2010 WL 4256186, at

Sept. 29, 2010)

("Individual employees or officers

of agencies are not appropriate defendants

in FOIA claims.").

Accordingly, the Court GRANTS Defendants' motion with respect to
these

Defendants.

The

Department

of

the

Army

is

the

proper

Defendant in this case.
2. Mootness

A

motion

to

dismiss

based

on

mootness

is

a

motion

to

dismiss

for lack of subject-matter jurisdiction under Federal

Rule

Civil

of

Procedure

12(b)(1).

See

GEICO

Gen.

Farag, 597 F. App'x 1053, 1054-55 (11th Cir. 2015)

Ins.

Co.

v.

(per curiam)

("[W]hen a district court disposes of a case on justiciability

grounds, we treat the district court's determination as if it
was a ruling on a motion to dismiss for lack of subject matter

jurisdiction . . . , even

if the district

court

mistakenly has

labeled its ruling a grant of summary judgment.").
Under

which

(i)

FOIA,

"each

agency,

upon

any

request

reasonably describes such records and

accordance

with

published

rules

stating

the

(if any) , and procedures to be followed,

for

(ii)

time,

records

is made in
place,

fees

shall make the records

promptly available to any person."

5 U.S.C.

§ 552(a)(3)(A).

plaintiff

against

an

district
U.S.C.

may

seek

court

an

injunction

when the

§ 552(a)(4)(B),

information,

her

agency

agency improperly withholds
but

once

she

receives

FOIA claim becomes moot.

A

in

the

records,

the

5

requested

Lovell v. Alderete,

630 F.2d 428, 430-31 (5th Cir. 1980)2 ("The record clearly shows
that

Lovell

has

sought ....
delivered

late,

for

sought.");
App'x

Lovell

receives

all

of

the

information

he

mootness

688

(11th

the

now

has

all

of

the

information

he

The district court correctly dismissed both

Von Grabe

687,

all

Even though the information he sought . . . was

requested ....
actions

received

to

v.

the

U.S.

Cir.

extent

Dep't

2011)

information he

if the information was delivered late,

documents

of Homeland Sec,

(per

has

that

curiam)

("If

requested under

were

440

F.

a person
FOIA,

even

his FOIA claim is moot to

the extent that such information was sought.").
2 See Bonner v. City of Prichard,

661 F.2d 1206,

1209 (11th Cir. 1981)

(en banc) (adopting as binding precedent all Fifth Circuit decisions rendered
before October 1,

1981).

Here,

that

Defendants

Plaintiff

Accordingly,

and

received

has

her

Court GRANTS

contend,

the

claim

for

Defendants'

Plaintiff

does

documents

injunctive

motion on this

relief

not

she
is

dispute,

requested.3

moot,

and

the

issue.

3. Monetary Damages
Because

FOIA

does

not

allow

claims

Plaintiff's request for damages fails.
Serv.,
Jan.

No.

10,

6:13-cv-Orl-28KRS,

2014)

Cir.

damages

v. U.S.

2009)

WL

169830,

Dep't of Agric,

("Plaintiffs

only injunctive

5:00CV298-3,

("[T]he

FOIA

are

not

relief.");

2001 WL 721818,

does

damages . . . .").
motion on this

damages,

See Ajamu v. U.S.
at

*6

560

Postal

(M.D.

F.3d 673,

entitled

for violations of FOIA because 5 U.S.C.

authorizes
No.

monetary

Fla.

("FOIA does not allow for an award of damages.");

Cornucopia Inst,
(7th

2014

for

not

Gonser v.

at *7

provide

Accordingly,

for

to

675 n.l
monetary

§ 552(a)(4)(B)
United States,

(N.D. Ga. May 17, 2001)
the

recovery

the Court

GRANTS

appoint

Special

of

money

Defendants'

issue.

4. Special Counsel

Plaintiff

asks

the

Court

to

Counsel

investigate whether disciplinary action is appropriate.

to

Under

FOIA,

[w]henever

agency
3

The

the

records

record

court

orders

improperly

indicates

that

the

the

production

withheld
Department

of

of

from

any

the

the Army withheld

a

number of documents pursuant to statutory exemptions.
(See Doc. 19-3.)
Plaintiff has not argued that these documents were improperly withheld.

complainant and assesses against the United States
reasonable attorney fees and other litigation costs,
and the court additionally issues a written finding
that the circumstances surrounding the withholding
raise
questions
whether
agency
personnel
acted
arbitrarily
or
capriciously with
respect
to
the
withholding,
the
Special
Counsel
shall
promptly
initiate
a
proceeding
to
determine
whether
disciplinary action is warranted against the officer
or employee who was primarily responsible for the
withholding.
The
Special
Counsel,
after
investigation
and
consideration
of
the
evidence
submitted,
shall
submit
his
findings
and
recommendations to the administrative authority of

the agency concerned and shall send copies of the
findings
and recommendations
to the
officer or
employee or his representative. The administrative
authority shall take the corrective action that the
Special Counsel recommends.
5 U.S.C.

become

§ 552 (a) (4) (F) (i) .

involved,

ordered

the

the

find that

for

the

court

disciplinary

require[s]

Court

production

169830, at *8 n.17.

"[B]efore the

of

must
agency

have,

among

records."

Counsel

other
Ajamu,

can

things,
2014

WL

See also Lovell, 630 F.2d at 431 ("We also
was

correct

in

dismissing Lovell's

action ....

that,

Special

before

[Section

disciplinary

552(a)(4)(F)]

action

taken ... it is necessary that the court (1)

request

can

be

order production

of improperly withheld documents (2) assess attorney's fees and
other litigation costs against the Government and (3)
written

finding

that

the

agency

personnel

may

issue a

have

acted

arbitrarily and capriciously.").

In

this

case,

because

production of any documents,

the

Court

has

not

ordered

assessed any attorneys'

the

fees or

costs,

or

issued

arbitrarily

and

motion on this

a

statement

capriciously,

the

Defendants'
TERMINATE

ORDER
September,

the

that

Court

the

agency

GRANTS

acted

Defendants'

issue.

Ill

For

finding

reasons

motion

to

all motions

ENTERED

Conclusion

explained
dismiss.

and deadlines

at

Augusta,

above,
(Doc.

the

8.)

and CLOSE

Georgia

Court

The
this

GRANTS

Clerk

shall

case.

this Q</

day

of

2016.

HALL

united States district judge
soutjtbrn district of georgia