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)

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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

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