Moynihan v. Attorney General of Washington

Filing 12

ORDER by Judge Benjamin H Settle granting 11 Motion to Dismiss.(TG; cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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8 MICHAEL FRANCIS MOYNIHAN, JR.,
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Plaintiff,

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v.

11 ATTORNEY GENERAL OF
WASHINGTON,
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Defendant.
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CASE NO. C11-5896BHS
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

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This matter comes before the Court on Defendant Washington State Office of the
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Attorney General’s (“AGO”) motion to dismiss (Dkt. 11). The Court has considered the
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pleadings filed in support of the motion and the remainder of the file and hereby grants
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the motion for the reasons stated herein.
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I. PROCEDURAL HISTORY
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On November 17, 2011, Plaintiff Michael Francis Moynihan, Jr.’s (“Moynihan”)
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filed the complaint in this action. Dkt. 4. Moynihan appears to allege violations of the
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Freedom of Information Act, 5 U.S.C. § 551, et seq. (“FOIA”), for AGO’s failure to
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ORDER - 1

1 comply with a request to produce documents under the Act. Dkt. 4. On March 9, 2012,
2 AGO filed a motion to dismiss the complaint. Dkt. 11. Moynihan did not respond.
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II. DISCUSSION

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As an initial matter, the Court notes that it may consider a party’s failure to

5 respond to a motion as an admission that the motion has merit. Local Rule CR 7(b)(2).
6 Moynihan failed to respond to AGO’s motion, and, as discussed below, the Court
7 concludes that AGO’s motion has merit, and should be granted.
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With regard to the merits of the motion, the Court concludes that Moynihan’s suit

9 is barred by the Eleventh Amendment and that Moynihan has failed to state a claim upon
10 which relief may be granted. First, an unconsenting state is immune from suits brought
11 in federal courts by its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63
12 (1974). Washington has not waived its Eleventh Amendment immunity for suits such as
13 the one presented here. Clallam Cnty. v. Dep’t of Transp., 849 F.2d 424, 427 (9th Cir.
14 1988), cert. denied, 488 U.S. 1008 (1989) (“Neither the State [of Washington] nor the
15 agency waived the eleventh amendment immunity”). In this case, Moynihan has failed to
16 show that Washington or AGO has waived its immunity to suit in federal court.
17 Therefore, the Court lacks subject matter jurisdiction and grants AGO’s motion to
18 dismiss on this issue.
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Second, under both the FOIA and the APA definitions, every “agency” is an

20 “authority of the Government of the United States.” 5 U.S.C. § 551(1). AGO is an
21 authority of the state of Washington, not of the United States. Even when a state agency
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ORDER - 2

1 not an “agency” within the meaning of FOIA. St. Michael’s Convalescent Hosp. v. Cal.,
2 643 F.2d 1369, 1373-74 (9th Cir. 1981). Accordingly, a claim in federal cout seeking to
3 force a state agency to disclose records under FOIA cannot succeed. See Unt. v.
4 Aerospace Corp., 765 F.3d 1440, 1447 (9th Cir. 1985). In this case, Moynihan has failed
5 to show that AGO is subject to FOIA, and therefore, has failed to state a claim upon
6 which relief may be granted.
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III. ORDER
Therefore, it is hereby ORDERED that AGO’s motion to dismiss (Dkt. 11) is

9 GRANTED and Moynihan’s claims are DISMISSED with prejudice.
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DATED this 9th day of April, 2012.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3