Carson v. U.S. Securities and Exchange Commission

Filing 21

MEMORANDUM OPINION granting 16 respondent's Motion to Dismiss for Lack of Jurisdiction, and this action is dismissed, with prejudice. Signed by District Judge Thomas W Phillips on May 2, 2011. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JOSEPH P. CARSON,
Petitioner,
v.
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION,
Respondent.

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No. 3:09-CV-615
(Phillips)

MEMORANDUM OPINION

Petitioner, Joseph P. Carson, acting pro se, filed a complaint against
respondent, the United States Securities and Exchange Commission (SEC), alleging that
respondent failed to respond timely to his request for records. Respondent SEC has
moved to dismiss the complaint on the grounds that petitioner has received all the relief he
seeks in his complaint and there is no live controversy for the court to consider. Thus,
respondent avers the court lacks subject matter jurisdiction over the complaint, and it
should be dismissed. For the reasons which follow, respondent’s motion to dismiss will be
granted.

Respondent has moved to dismiss the complaint pursuant to Federal Rule
of Civil Procedure 12(b)(1). This rule provides that a party may move to dismiss an action

by motion based on lack of jurisdiction over the subject matter. In analyzing a motion under
Rule 12(b)(1), a court must make a distinction between motions which attack the complaint
on its face and those which attack the existence of subject matter jurisdiction in fact. RMI
Titanium Co. v. Westinghouse elec. Corp.,, 78 F.3d 1125, 1134 (6th Cir. 1996). As to
“facial” attacks, the challenge is that the plaintiff has not faithfully recited all the jurisdictional
predicates necessary for a court to exercise subject matter jurisdiction. Id. As to “factual”
attacks, the challenge is the actual existence of a court’s jurisdiction over the subject
matter. Id. A court is obligated to dismiss an action in the absence of subject matter
jurisdiction, either on its own motion or by suggestion of a party. 2 Moore’s Federal
Practice § 12.30[1] (Matthew Bender 3rd Ed.) (citing Avitts v. Amoco Prod. Co., 53 F.3d 690,
693 (5th Cir. 1995)).

When the motion to dismiss is based on a “factual attack,” no presumptive
truthfulness applies to the complaint’s factual allegations and the court “is free to weigh the
evidence and satisfy itself as to the existence of its power to hear the case.” RMI Titanium
Co., 78 F.3d at 1134. If the facts are in dispute, the court can exercise wide discretion to
consider affidavits, documents outside the complaint, and even conduct a limited
evidentiary hearing. Id.. Consideration of matters outside the pleadings, however, does
not convert the Rule 12(b)(1) motion into a Rule 56 motion, as it would under a Rule
12(b)(6) motion. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 195-16 (6th Cir. 1986).
Here, respondent makes a factual attack as to the existence of subject matter jurisdiction,

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asserting that the record shows that no case or controversy exists for this court to
adjudicate, thus rendering petitioner’s claim moot.

Under Article III, Section 2, of the Constitution, federal courts have authority
to adjudicate only ongoing cases or controversies, and this requirement is no longer met
when the dispute has become moot. Cleveland Nat. Air Show, Inc. v. U.S. Dep’t of
Transp., 430 F.3d 757, 761 (6th Cir. 2005) (citing Chirco v. Gateway Oaks, LLC, 384 F.3d
307, 309 (6th Cir. 2004)). A case becomes moot “when the issues presented are no longer
“live” or the parties lack a legally cognizable interest in the outcome.”

Powell v.

McCormack, 395 U.S. 486, 496 (1969). A federal court has no authority “to give opinions
upon moot questions or abstract propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before it.” Church of Scientology of California
v. United States,506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).

The Freedom of Information Act (FOIA), 5 U.S.C. § 552 provides that any
person has the right to request access to federal agency records or information. All
government agencies, as defined by 5 U.S.C. § 552(f), are required to disclose records
upon receiving a written request for them, except for those records that are exempt from
disclosure under the Act. The FOIA requires that an individual submit a reasonably specific
request for information that complies with the agency’s published rules for making a FOIA
request. 5 U.S.C. § 552(a)(6)(i). If a request is initially denied, in whole or in part, an
individual may file an administrative appeal with the agency. 5 U.S.C. § 552(a)(6)(A)(i).
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The Act confers jurisdiction upon the district courts to enjoin an agency form withholding
non-exempt agency records and to order the production of any records improperly withheld
from the requesting party. 5 U.S.C. § 552(a)(4)(B); Perry v. Block, 684 F.2d 121, 125
(D.C.Cir. 1982). Therefore, if an agency releases in full all records responsive to a request,
the controversy ceases to exist and the case becomes moot. Tijerina v. Walters, 821 F.2d
789, 799 (D.C.Cir. 1987) (finding FOIA claims moot once the agency released all nonexempt material to the plaintiff).

Here, the record shows that petitioner submitted his FOIA request on October
13, 2009 and the SEC acknowledged receipt of the request on October 15, 2009. The SEC
then sought clarification of the request from petitioner. The SEC notified petitioner that
additional time would be needed to process his request on November 16, 2009. At the time
petitioner filed his complaint on December 28, 2009, he had not received an initial response
from the SEC. Petitioner’s sole claim against the SEC is for delay or tardiness in
responding to this FOIA request. However, that claim is now moot, because the SEC sent
its initial FOIA response on February 18, 2010; petitioner appealed on February 21, 2010;
the SEC responded on March 22, 2010; petitioner then supplemented his appeal on March
22, 2010; and the SEC’s final response was sent on March 25, 2010 that no responsive
documents could be located. Therefore, the court finds that the relief petitioner seeks
through his lawsuit has been fully provided.

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As petitioner’s complaint challenges only the tardiness of the SEC’s response
to his FOIA request, his claim was rendered moot by the agency’s March 25, 2010
response that no responsive documents could be located. Other federal courts have held
that suits challenging the tardiness of an agency’s response are rendered moot by the
agency’s subsequent response to the FOIA request. See Voinche v. Federal Bureau of
Investigation, 999 F.2d 962, 963 (5th Cir. 1993); Murillo v. United States Dep’t of Homeland
Security, 2007 WL 1944406 (N.D.Tex. June 28, 2007); Adenodi v. United States Dep’t of
Justice, 2007 WL 701136 (E.D.La Mar. 1, 2007); Amaya-Flores v. Dep’t of Homeland
Security, 2006 WL 3098777 (W.D.Tex. Oct. 30, 2006); DiModica v. United States Dep’t of
Justice, 2006 WL 89947 (S.D.N.Y. Jan. 11, 2006).

Conclusion
Because petitioner has already obtained all the relief he seeks in his
complaint, there is no live controversy for this court to adjudicate. Without a case or
controversy, the court lacks subject matter jurisdiction. Accordingly, respondent’s motion
to dismiss the complaint [Doc. 16] is hereby GRANTED, and this action is DISMISSED,
with prejudice.

ENTER:

s/ Thomas W. Phillips
United States District Judge