Shortall et al v. Baltimore District U.S. Army Corps of Engineers

Filing 16

MEMORANDUM. Signed by Judge William M Nickerson on 6/4/2015. (c/m 6/5/15 jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

PURNELL A. SHORTALL et al.

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v.
BALTIMORE DISTRICT
U.S. ARMY CORPS OF
ENGINEERS
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Civil Action No. WMN-14-3904

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MEMORANDUM
Before the Court is a Motion to Dismiss filed by Defendant
Baltimore District U.S. Army Corps of Engineers (the Corps).
ECF No. 9.

The motion is fully briefed and ripe for review.

Upon a review of the papers, facts, and applicable law, the
Court determines that no hearing is necessary, Local Rule 105.6,
and that Defendant’s motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, Purnell and Mary Ann Shortall (the Shortalls),
pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. §
552, seek documents that they believe are in the Corps’
possession related to a piece of property they own located at
11523 Cordova Road, Cordova, Maryland, 21625 (the Property).

In

particular, they seek field notes of a former Corps Non-Tidal
Wetlands Consultant, Alex Dolgos, to confirm that in 1991 Mr.
Dolgos recommended to the Shortalls to leave in place metal
disposed of on the Property.

The Shortalls have been ordered to

remove this metal by the Maryland Department of the Environment,
and they believe that Dolgos’ field notes would support their
contention that it would be more environmentally sound to leave
the metal in place.
On September 15, 2014, the Shortalls submitted their FOIA
request to the Corps asking for “all written materials,
photographs, photocopies, maps, drawings, hand written notes and
other material in your possession and on record . . . maintained
during the time of 1985-2014” that related to the Property “in
the name of Purnell and Mary Ann Shortall, or Shortall Building
Supplies & Hardware, Inc.”

ECF No. 1-1.

A Corps employee,

Michael S. Fraer, called the Shortall household on September 24,
2014, to discuss the request and an agreement was made and
confirmed by e-mail to limit the request to the time period of
1985-1992.

ECF No. 1-2.

On October 3, 2014, Mr. Fraer sent an e-mail notifying the
Shortalls that the Corps made an initial determination to grant
the FOIA request.

ECF No. 1-3.

On the same date, Mr. Fraer

also sent a memorandum to the Chief of the Operations Division
in the Baltimore District Regulatory Branch requesting
responsive copies by October 14, 2014.

ECF No. 9-6.

No

response from the Regulatory Branch by that date is in the
record.

Mr. Fraer left the Army Corps on October 14 and at that

point the Shortalls’ request was dropped.
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Mrs. Shortall sent e-

mails to Mr. Fraer’s account on October 30 and November 13,
2014, which went unanswered.

ECF Nos. 1-4 and 1-5.

Finally, on December 1, 2014, Mr. Shortall sent a letter to
the Corps notifying the Corps that he had yet to receive his
FOIA documents and he would file legal proceedings if he did not
receive the documents by December 12.

ECF No. 1-6.

On December

9, 2014, Michael Shields, an attorney in the Baltimore District
Office Counsel, notified Mrs. Shortall by e-mail of Mr. Fraer’s
departure, that her October and November e-mails had not been
received, and that he would forward responsive records as soon
as they were produced by the District Regulatory Office.
No. 1-7.

ECF

Mrs. Shortall replied the same day, reiterating the

request regarding the Property and adding that the request was
“in regards to a report on some metal products located in
non-tidal wetlands, Ace Adkins [sic] advised me, and I am
sure he would have put it in his notes, that I did not
have to move the metal. He should have a report stating
this information.”
ECF No. 9-11.
The Shortalls filed this action on December 16, 2014.
No. 1.

ECF

On December 17, 2014, Kathy Anderson, Chief of the

Maryland Southern Section in the Regulatory Branch, produced a
memorandum stating that a search of the Regulatory database
returned no results for the Property or its related company
names.

The Shortalls received a letter from the Office of

Counsel dated the same day stating that a “search of the U.S.
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Army Corps of Engineers, Baltimore District files . . . failed
to locate any records responsive to your request.”
13.

ECF No. 9-

The letter also advised, in response to Mrs. Shortall’s

last e-mail, that Ace Atkins was an employee of the Maryland
Department of the Environment and not the Corps.

Id.

The

Shortalls received this letter via e-mail from Mr. Shields.
Mrs. Shortall replied the same day stating that “[t]here
are definitely records of reports by the Army Corps of Engineers
in your custody.

There were numerous visits from the Army Corps

of Engineers to inspect our property, therefore there must be
reports in your custody.”

ECF No. 9-14 at 2.

In response, on

February 2, 2015, Mr. Shields contacted Ms. Anderson and Sandy
Zelen, Enforcement Program Manager in the Regulatory Branch, to
ask if there was any other location for potentially responsive
records.

ECF No. 9-3 ¶ 17 (Decl. Michael Shields).

That

inquiry produced hardcopy records that were not attached to the
Property address but did reference the Shortalls.

Id. ¶ 18.

These records were scanned and sent via e-mail to the Shortalls
on February 11, 2015, at which point Mr. Shields stated that
these files were the only ones that could be located.

Id. ¶ 19.

There was no further communication between the Shortalls and the
Corps.
On April 6, 2015, the Corps filed this instant Motion to
Dismiss or in the Alternative for Summary Judgment, under Rules
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12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil
Procedure, on the ground that the Corps responded to the
Shortalls’ FOIA request, thus making this action moot.

The

Corps has also moved for the Court to deny the Shortalls’
request for fees and damages.

The Shortalls have opposed this

motion, arguing that since the Corps’ disclosures neither
include letters Walter Washington – a Corps employee - received
in the early 1990s regarding the Property nor the field notes of
Mr. Dolgos, the Corps has failed to adequately respond under
FOIA.
II. LEGAL STANDARD
Under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, the Court must dismiss an action if it discovers it
lacks subject matter jurisdiction.

The plaintiff has the burden

of proving the Court has jurisdiction, and the Court must make
all reasonable inferences in the plaintiff’s favor.
Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003).

Khoury v.

A challenge to

subject matter jurisdiction may be facial, asserting that the
allegations in the complaint are insufficient to establish
jurisdiction, or factual, asserting that the jurisdictional
allegations in the complaint are not true.

Kerns v. United

States, 585 F.3d 187, 192 (4th Cir. 2009).

In a factual

challenge, “the district court is entitled to decide disputed
issues of fact with respect to subject matter jurisdiction.”
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Id. at 192.

In this circumstance, the court may “look beyond

the pleadings and the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the
issue to determine whether in fact subject matter jurisdiction
exists.”

Khoury, 268 F. Supp. 2d at 606.

Under Article III, section 2 of the Constitution, federal
courts have jurisdiction to hear and decide “cases” or
“controversies.”

Allen v. Wright, 468 U.S. 737, 750 (1984).

This case-or-controversy requirement must be met “through all
stages of federal jurisdiction proceedings.”

Lewis v.

Continental Bank Corp., 494 U.S. 472, 477 (1990).

An actual

controversy must exist “at all stages of review, not merely at
the time the complaint is filed.”

Davis v. Fed. Election

Comm’n, 554 U.S. 724, 732 (2008).

When “the claimant receives

the relief he or she sought to obtain through the claim,” the
action becomes moot and there is no longer an active case or
controversy through which the Court may assert jurisdiction.
Friedman’s Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002);
Mobley v. Acme Mkts, Inc., 473 F. Supp. 851, 858 (D. Md. 1979)
(“[M]ootness [is] derived from the Constitution, specifically
Article III, which requires a ‘case or controversy’ as the
fundamental ingredient of subject matter jurisdiction.”).

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III. DISCUSSION
FOIA “provides a mechanism for citizens to obtain documents
from federal agencies, and grants federal district courts
jurisdiction to review agency compliance with citizens’
requests.”

Reaves v. Jewell, Civ. No. DKC-14-2245, 2014 WL

6698717, at *3 (D. Md. Nov. 26, 2014).

Subject to certain

statutory exemptions not at issue here, FOIA requires that
federal agencies shall “upon any request for records which
reasonably describe such records . . . make the records promptly
available to any person.”

5 U.S.C. § 522(a)(3)(A).

In a

lawsuit seeking the release of documents under FOIA, “[o]nce the
records are produced, the substance of the controversy
disappears and becomes moot since the disclosure which the suit
seeks has already been made.”

Jacobs v. Fed. Bureau of Prisons,

725 F. Supp. 2d 85, 89 (D.D.C. 2010).
The Corps argues that by producing the scanned documents
found in February, that it has resolved the subject matter of
the Shortalls’ lawsuit.

In its opposition, the Shortalls do not

directly address the Corps’ argument regarding mootness.
Instead, they dispute that the Corps provided them with all
responsive documents.

The basis of the Shortalls’ complaint,

however, is that the Corps had not responded to their FOIA
request at all.

See ECF No. 1 at 2(“Defendant’s failure to

produce documents . . . has caused the Plaintiffs substantial
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expenses, which would have been avoided if the Defendant’s [sic]
had produced documents, in a timely manner, pursuant to the
Federal Freedom of Information Act.”).

That the Corps did not

produce letters the Shortalls believe were received by them, ECF
No. 11 at 8 (“Although Defendant claims all documents have been
produced, Plaintiff has proof that documents do exist.”),
relates not to whether a search was conducted (the Shortalls
concede it was) but to the adequacy of such search.

The

complaint does not allege an inadequate search by the Corps and
their argument to that extent in their Opposition cannot
constitute an amendment of the pleadings.

Mid-Atlantic

Chemicals Corp. v. Shaw Industries, Inc., 2006 WL 174256, *3 n.
4 (D. Md. 2006) (“[I]t is well settled that a plaintiff may not
amend a complaint through a memorandum opposing a motion to
dismiss.”).
The record in this litigation demonstrates that the Corps
produced documents responsive to the Shortalls’ September 2014
request.

The Corps conducted multiple searches of their

records, with variations of terms submitted by the Shortalls.
The first search produced no results, and the Corps sent a norecords FOIA response to the Shortalls.

The second search –

conducted upon request of the Shortalls, by last name only produced physical records that had been archived.

The Corps

retrieved the records, scanned and promptly sent them to the
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Shortalls once they were discovered.

Thus, the “controversy” in

the Shortalls’ complaint that “Defendants fail[ed] to produce
documents” fell away when the Corps produced documents.
It may seem formalistic to require the Shortalls to allege
in their complaint that ”the Defendant is improperly withholding
records within the meaning of the Freedom of I[n]formation Act”
ECF No. 11 at 9, rather than to raise the issue in briefing, but
when the requested relief is for the Court to “[o]rder
Defendants to produce the public records as previously specified
to Plaintiffs,” ECF No. 1 at 3, and Defendants have voluntarily
taken that action, the Court’s ability to grant relief falls
away and jurisdiction with it.

Morales v. Pension Benefit

Guaranty Corp., Civ. No. L-10-1167, 2012 WL 253407, at *4 (D.
Md. Jan. 26, 2012) (“A FOIA action becomes moot when, during the
pendency of a lawsuit seeking the disclosure of documents, the
requester is provided with all documents responsive to his
request.”).

The Shortalls had approximately two months to amend

their complaint upon receiving the responsive documents, and may
now re-file their FOIA complaint challenging the inadequacy of
the search.1

While the Court is sympathetic to the Shortalls’

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The Shortalls allude to nefarious intent in failing to produce
the copied letters that was sent to the Corps in 1992. See ECF
No. 11 at 9 (“Defendants were not aware that the Plaintiffs have
in their possession actual letters from [the Corps] dated 19911992 . . . therefore, [the Corps] did not produce documents
under the assumption that Plaintiffs had no proof that there
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quandary, in which they believe they are being asked to take an
action precisely opposed to what they were advised over 20 years
ago, their FOIA complaint, as filed, cannot grant them the
relief they seek nor can their opposition alter or amend the
action brought in December 2014.

Even though the Court

construes the Shortalls’ pleadings liberally, as they are pro se
litigants, the “Court cannot add factual allegations or
otherwise advocate for a pro se litigant.”

Taitz v. Colvin,

Civ. No. ELH-13-1878, 2013 WL 6623196, at *2 (D. Md. Dec. 13,
2013).
As to attorney’s fees and litigation costs, the Shortalls
are not eligible for such fees as the Corps” FOIA search and
response was spurred by the Shortalls’ communications rather
than the filing of this action.

FOIA provides that “[t]he court

may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case under
this section in which the complainant has substantially
prevailed.”

See 5 U.S.C. § 552(a)(4)(E).

“Substantially

prevailed” under FOIA is defined as either when “the complainant
has obtained relief through either – (1) a judicial order, or an
enforceable written agreement or consent decree; or (2) a

were ever records in Defendant’s custody.”). The Court will
note that, it is also entirely possible that in the intervening
20 years, those records were not kept and any complaint alleging
inadequacy of production on this ground may not be successful.
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voluntary or unilateral change in position by the agency, if the
complainant’s claim is not insubstantial.”
552(a)(4)(E)(ii).

Id. §

This opinion and following order dismissing

the Shortalls’ case will not constitute relief through a
judicial order, so the question is whether the Corps’
responsiveness constituted a voluntary or unilateral change in
position by the agency.
In order to fall under the second prong of “substantially
prevailing,” the Shortalls must establish that their claim “was
reasonably necessary and substantially caused the requested
records to be released.”
(4th Cir. 1999).

Reinbold v. Evers, 187 F.3d 348, 363

Whether the plaintiff substantially prevailed

is a question of causation, as “the lawsuit must have resulted
in the release of records that would not otherwise have been
released.”

Id.

Additionally, “the mere filing of the complaint

and the subsequent release of the documents is insufficient to
establish causation.”

Weisburg v. United States Dep’t of

Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984).

Here, the record

does not support a conclusion that the Shortalls’ suit was the
catalyst for the Corps’ response.

While it is clear that the

Corps dropped the ball between October 14th and December 1st
because of Mr. Fraer’s departure, the Corps responded to Mr.
Shortall’s December 1st letter on December 9th, stating that the

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Corps would send any responsive documents as soon as the search
was completed.
On December 17th, a day after the complaint was filed, that
search was completed and the Shortalls were notified that a
search according to their request produced no results.

Mr.

Shields then asked that a second, broader search be conducted
after Mrs. Shortall objected to the no records result.

This

second search of the Shortalls’ last name only produced some
documentation, which was scanned and turned over to Plaintiffs.
There is no suggestion that the Corps’ conduct was spurred on by
the lawsuit or that the Corps took an intractable position that
it was forced to change due to litigation.

As such, the

Shortalls’ request for litigation and attorneys’ fees will be
denied.
IV. CONCLUSION
For the reasons stated above, the Defendant’s Motion to
Dismiss will be granted.

A separate order shall issue.

______________/s/__________________
William M. Nickerson
Senior United States District Judge

DATED: June 4, 2015

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