Bergeron v. United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives

Filing 49

ORDER granting 42 Motion to Dismiss and denying 45 Motion for Attorney Fees. Clerk instructed to close case. Signed by Judge Miranda M. Du on 3/28/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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NORMAND BERGERON,
Plaintiff,

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DEPARTMENT OF JUSTICE-BUREAU OF
ALCOHOL TOBACCO, FIREARMS, and
EXPLOSIVES

Plaintiff’s Motion for Attorney Fees – dkt.
no. 45)

Defendant.

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ORDER
(Def’s Motion to Dismiss – dkt. no. 42,

v.

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Case No. 3:13-cv-00625-MMD-WGC

I.

SUMMARY

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Before the Court are Defendant Department of Justice—Bureau of Alcohol

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Tobacco, Firearms and Explosives’ (“ATF”) motion to dismiss (dkt. no. 42) and Plaintiff

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Normand Bergeron’s (“Bergeron”) motion for award of fees and costs (dkt. no. 45). The

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Court has also reviewed the parties’ respective responses and replies (dkt. nos. 44, 46,

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47, 48.) For the reasons set out below, ATF’s motion to dismiss is granted and

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Bergeron’s motion for attorney fees is denied.

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II.

BACKGROUND

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Bergeron, proceeding pro se, sues ATF seeking compliance with the Freedom of

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Information Act (”FOIA”), 5 U.S.C. § 552, after ATF failed to respond adequately to

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several written requests for records. (Dkt. no. 6.) Bergeron sought injunctive relief,

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attorney’s fees and costs, and written findings consistent with the provisions of 5 U.S.C.

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§ 552 et seq. (Id.)

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The parties resolved the bulk of the disputed issues on their own and submitted

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one issue to Magistrate Judge Cobb. Judge Cobb resolved the remaining dispute in

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Bergeron’s favor. (Dkt. no. 40 at 6-7.)

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III.

MOTION TO DISMISS

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ATF seeks dismissal because it argues no issues remain to be adjudicated and

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the case is now moot. (Dkt. no. 42 at 3.) Bergeron opposes dismissal, arguing the case

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is not moot because he is still seeking attorney fees and a finding that ATF acted

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arbitrarily and capriciously. (Dkt. no. 44 at 13.) In response, ATF argues that an award of

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attorney fees is a post judgment proceeding which does not preclude dismissal, and that

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there is no factual basis for a finding that the agency acted arbitrarily and capriciously.

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(Dkt. no. 46 at 2-3.) The Court agrees with ATF in part.

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As an initial matter, the parties have both misstated the law with respect to the

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Court’s role in determining whether ATF acted arbitrarily and capriciously. The FOIA

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statute provides:

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Whenever the court orders the production of any agency records
improperly withheld from the 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.

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5 U.S.C.A. § 552(a)(F)(i). Contrary to both parties’ arguments, it is not the Court’s role to

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find that ATF acted arbitrarily and capriciously. Rather, the Court must simply find that

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“circumstances surrounding the withholdings raise questions about whether agency

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personnel acted arbitrarily and capriciously.” (Id.)

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The Court finds that, even with the limited record before it, the circumstances

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surrounding ATF’s withholdings raise questions about whether the agency acted

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arbitrarily and capriciously. Bergeron was required to engage in years of litigation to

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obtain documents. He successfully obtained much of the disputed material through both

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negotiations with ATF and a court order. While ATF is correct in pointing out that most of
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Bergeron’s claims were resolved through joint discussions, such resolution does not

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mean that ATF’s initial refusals do not raise questions about the agency’s actions. In

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fact, other parts of the FOIA statute impose penalties on agencies even if disputes are

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resolved largely through a change in the agency’s position, rather than court order. See

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5 U.S.C. § 552(a)(E)(i) (“a complainant has substantially prevailed if the complainant has

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obtained relief through … a voluntary or unilateral change in position by the agency.”)

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Bergeron’s request for attorney’s fees and costs is a post judgment determination

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that does not preclude granting ATF’s motion to dismiss. Bergeron’s request for a finding

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that the circumstances surrounding ATF’s response to his FOIA requests raise questions

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about whether the agency acted arbitrarily and capriciously has been addressed.
Accordingly, the Court will grant Defendant’s motion to dismiss because all

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substantive issues have been resolved.

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IV.

MOTION FOR ATTORNEY FEES
Bergeron filed a motion for award of fees and costs. (Dkt. no. 45.) ATF opposed

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the motion because Bergeron did not comply with the local rules. (Dkt. no. 47.) Bergeron

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acknowledges that he failed to comply with the local rules and seeks leave to amend his

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motion. (Dkt. no. 48 at 5-6.)
The Court will deny Bergeron’s motion for attorney fees without prejudice so that

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he may serve and file a bill of costs in compliance with Local Rule 54-1.

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V.

CONCLUSION

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Defendant’s motion to dismiss (dkt. no. 42) is granted.

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Plaintiff’s motion for award of fees and costs (dkt. no. 45) is denied without

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prejudice.

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The Clerk is instructed to close this case.

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DATED THIS 28th day of March 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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