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
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