Caton v Norton, Seo'y of Interior 04-CV-439-JD 05/02/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Harold W. Caton

v. Civil No. 04-cv-439-JD Opinion No.

Gale Norton, in her official capacity as Secretary of the Interior

O R D E R

The Secretary of the Interior has moved to dismiss Harold W.

Caton's pro se complaint seeking relief under the Freedom of

Information Act,

("FOIA"), on the ground that

Caton has already received all of the information he requested

and that his case is therefore moot. Caton has objected to the

Secretary's motion, moved to strike its supporting declaration,

and moved to amend his complaint. The Secretary has objected to

both the motion to strike and the motion to amend, as well as to

Caton's subsequent motions for leave to file replies to those

objections and to file a sur-reply to the motion to dismiss. The

court grants Caton leave to file his replies and sur-reply, all

of which have been considered in ruling on the other motions.

1 Background

On December 11, 2003, Caton sent a fax to Audrey Ambrosino,

a public information officer for the National Park Service,

requesting "all information within your care/custody/control

under the freedom of information act (FOIA) (excluding the

payroll). They are contracts . . . Mem. Opp. Mot. to

Dismiss, Ex. D. The fax went on to identify five contracts

awarded for the construction of improvements to the Northern

Canal section of the Lowell National Historical Park in Lowell,

Massachusetts. Caton alleges that Ambrosino and another Park

Service employee, Marcia Dolce, responded by agreeing to allow

Caton to review the documents, marking any pages he wanted copied

so that "the ■'flagged' documents would be copied and immediately

forward [sic] the copies to [him]." Compl. 5 10. Because

neither Ambrosino nor Dolce informed Caton that any further

review was forthcoming, he believed that his FOIA request had

been unconditionally granted.

Following his review of the contracts and related records at

the Park Service office on December 22, 2003, Caton flagged a

number of documents for copying. The Park Service responded two

days later by producing "copies of those pages [Caton] requested

that are contained in the contracts [he] cited in [his] written

FOIA request of December 11, 2003," but advised him that the

remainder of the flagged documents fell outside the scope of that

2 entreaty and therefore would need to be the subject of a separate

FOIA request. Mem. Opp. Mot. to Dismiss, Ex. D. Furthermore,

in a letter dated February 9, 2004, the Park Service regional

director informed Caton that the agency was withholding some of

the documents he had flagged (which had been included in his

original request) on the ground that they were "inter-agency or

intra-agency memorandums or letters which would not be available

by law to a party other than an agency in litigation with the

agency" by virtue of the deliberative process privilege.

(b)(5); NLRB v. Sears. Roebuck. & Co..

(1975). Caton promptly appealed this decision to the

Department's FOIA officer, arguing that the Park Service had

waived any privilege by allowing him to review the requested

documents at its office. His letter of appeal did not reference

the Park Service's earlier determination that some of the

documents he flagged were outside the scope of his FOIA request.

Through an October 15, 2004, letter, the FOIA officer

notified Caton that his appeal had been granted in part and

denied in part. Specifically, the Department determined that, of

the seventy-five documents that had been withheld, thirty should

have been produced in their entirety and forty-three, although

protected by the deliberative process privilege, should have been

3 produced in redacted form.1 The Department determined that the

remaining two documents were properly withheld in their entirety

on the basis of the privilege. The Department also rejected

Caton's contention that the Park Service had waived the privilege

by allowing him to examine the requested documents. Records were

produced in accordance with the appeals officer's determinations

under cover of a letter dated November 5, 2004. Dissatisfied,

Caton commenced this action on November 23, 2004, seeking non­

redacted copies of all documents withheld by the Park Service on

the ground that any privilege had been waived.

On January 20, 2005, Lee Hammond, a chief of administration

for the Lowell National Historical Park, informed Caton that the

agency had reconsidered the partial denial of his FOIA request

and decided to release the sought-after documents in their

entirety. Caton's review of the material, however, revealed that

a print-out of a series of e-mails among Park Service employees,

which had been initially released in redacted form as document 6,

was missing from the most recent production. Although that

production contained a document bearing the number 6, that

document appeared to be identical to a subsequent series of

1The Department also determined that nine of the documents contained sensitive personal information, such as employee telephone numbers and e-mail addresses, that would be redacted before producing them.

(b)(6).

4 e-mails that had been produced as document number 60. Caton

notified counsel for the Secretary, who pledged to investigate.

Hammond then sent Caton an unredacted copy of the original

document 6, under cover of a letter explaining that "the document

I incorrectly sent to you which was also numbered /6 was

actually a duplicate of a document numbered /60'’ with the 'O'

missed by the copy machine." Mem. Opp. Mot. to Dismiss, Ex. I.

Hammond reiterates this explanation in her declaration submitted

in support of the motion to dismiss. Hammond Decl. 5 5. As

Caton points out in his objection, however, a cursory comparison

of documents 6 and 60 from the January 20, 2005, production calls

this account into question. A number was handwritten in the

upper right-hand corner of each document and enclosed with a

close-fitting circle so that, if the "0" on document 60 had in

fact been "missed" by the copier, space would have been left

between the remaining "6" and the circle where the "0" should

have appeared. Yet the circle fits snugly around the "6" on the

document produced with that number on January 20, 2005. Compare

Mem. Opp. Mot. to Dismiss, Ex. Z, at 6 with i d . at 60.

Meanwhile, between December 7, 2004, and January 12, 2005,

Caton served the Park Service with additional FOIA requests for

the information deemed to fall outside the scope of his initial

request. On January 14, 2005, the Park Service informed Caton by

letter that the cost of retrieving and copying the additional

5 documents would come to more than $55,000 and that, in accordance

with Department regulations, the Park Service would not begin

processing the request until Caton remitted or obtained a waiver

of the fee. See

(a)(4)(A) (authorizing agencies to

charge search and duplication fees, subject to waiver, in

connection with FOIA requests). The letter also notified Caton

that he had the right to appeal this decision to the Department's

FOIA officer. Caton made no such appeal.

Discussion

I. Caton's Motion to Amend His Complaint

The court must first consider Caton's motion to amend, since

its allowance could moot the Secretary's pending motion to

dismiss, at least in part. See DM Research. Inc. v. Coll. of Am.

Pathologists.

(1st Cir. 1999). "While leave to

amend shall be freely given when justice so requires . . . the

liberal amendment policy prescribed by Rule 15(a) does not mean

that leave will be granted in all cases."2 Invest Almaz v.

2Caton also seeks to amend his complaint through Rule 15(d), which permits a "supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented," on the basis of the Secretary's production of documents to him on January 20, 2005. This court uses the same standard in assessing a motion made under either Rule 15(a) or 15(d). Mueller Co. v. United States Pipe & Foundry Co..

(D.N.H. 2005) (citing cases), appeal docketed. No. 05-1223 (1st Cir. Feb. 17, 2005).

6 Temple-Inland Forest Prods. Corp.,

(1st Cir.

2001) (internal quotation marks omitted; ellipse in original).

Caton seeks to amend his complaint to seek enforcement of the

alleged "promise to allow [him] to review all records of [the]

construction contracts" referenced in his original FOIA request,

characterizing the Park Service's refusal to provide copies of

the additional documents absent his payment of the attendant fees

as a breach of contract. Mot. to Amend at 1. Caton also wishes

to add claims for fraud and "bad faith and malfeasance" arising

out of both the allegedly dishonored promise and the substitution

of document 60 for document 6 in the January 20, 2005, production

by the Park Service.3

This court lacks subject-matter jurisdiction over any such

claims. "It is well settled that the United States, as

sovereign, may not be sued without its consent. Jurisdiction

must be found in an express Congressional waiver of immunity or

consent to be sued."4 Murphy v. United States.

(1st Cir. 1995) (internal citation omitted). Although the United

States has consented to suit in federal district court on certain

3Caton also accuses the Department of bad faith for supplying the allegedly deficient Hammond affidavit.

4 Government employees acting in their official capacity, such as the Secretary here, enjoy the same immunity.

(b)(1).

7 claims through the Federal Tort Claims Act,

, the

Act exempts claims sounding in misrepresentation. I d . § 2680(h).

Caton's claims for fraud and bad faith, arising out of statements

allegedly made by Park Service employees during or subsequent to

the processing of his FOIA requests, fall within this exemption.5

Santoni v. FDIC,

(1st Cir. 1982); see also

Ramirez v. United States.

(9th Cir. 1977) (en

banc) ("The misrepresentation exclusion presumably protects the

United States from liability in those many situations where a

private individual relies to his economic detriment on the advice

of a government official.") Accordingly, the court lacks

jurisdiction over those claims. See, e.g.. Bolduc v. United

States,

(1st Cir. 2005).

This court also lacks subject-matter jurisdiction over

Caton's claim that the Department breached its alleged promise to

provide him, free of charge, with all of the documents he

believes to have been encompassed by his initial FOIA request.

Although the Little Tucker Act conveys the jurisdiction of the

District Court over certain claims founded upon "any express or

5At least one court has stated, albeit in dicta, that an agency's misrepresentations in responding to a FOIA request are not actionable for the simple reason that the statute does not contemplate any such liability. Johnson v. City of Shorewood.

, 816 (8th Cir.), cert, denied. 125 S. C t . 43 (2004). This court need not decide whether to follow that dictum here, as sovereign immunity clearly bars Caton's fraud claims. implied contract with the United States," 28 U.S.C. 1346(a)(2),

the Act "does not authorize claims that seek primarily equitable

relief." Berman v. United States.

(1st Cir.

2001) (citing Richardson v. Morris.

(1973)).

The Little Tucker Act, then, provides no jurisdiction over

Caton's claims seeking enforcement of the alleged promise to

provide the records identified in his initial FOIA request.6

Finally, to the extent Caton invokes FOIA itself as a basis

for judicial relief from the Park Service's decision to withhold

the documents it has deemed beyond the scope of his initial

request, he is not entitled to any such relief. "FOIA clearly

requires a party to exhaust all administrative remedies before

seeking redress in the federal courts." Tavlor v. Appleton.

(11th Cir. 1994) (citing cases); see also, e.g..

Hidalgo v. FBI.

(B.C. Cir. 2003). In its

January 14, 2005, response to Caton's additional FOIA requests,

the Park Service informed him that he had the right to appeal its

response to the Department's FOIA officer, as he had done with

the Park Service's decision on his initial FOIA request. Caton

failed to do so. Accordingly, he cannot seek relief on his

6Caton's claim seeking the same relief based on a theory of detrimental reliance is similarly barred, whether or not the Little Tucker Act waives sovereign immunity against promissory estoppel claims for monetary damages. See, e.g.. Robbins v. Reagan.

(B.C. Cir. 1985) (refusing to take up issue of sovereign immunity from promissory estoppel claims).

9 subsequent FOIA requests in this court. See, e.g.. Tavlor, 30

F .3d at 1369-70; Garqano v. IRS.

, at *2 (D.

Mass. July 10, 2003). Because all of the claims Caton seeks to

add are barred by the doctrines of sovereign immunity or

exhaustion of remedies, his motion to amend is denied on the

basis of futility.

II. The Secretary's Motion to Dismiss

The Secretary moves to dismiss Caton's initial complaint as

moot, asserting that he has by now received unredacted copies of

all documents responsive to his original FOIA request. It is

well-settled that a defendant agency generally can moot a FOIA

claim by reversing course and releasing the records originally

withheld in response to the plaintiff's request. E.g.. Walsh v.

Dep't of Veterans Affairs.

(7th Cir. 2005);

Reg'l M q m t . Corp. v. Legal Servs. Corp..

(4th

Cir. 1999); Armstrong v. Executive Office of the President.

(B.C. Cir. 1996). To do so, however, the agency

must "show by affidavit that facts exist which moot the case."7

1 James T. O'Reilly, Federal Information Disclosure § 8:7 (3d ed.

7While the First Circuit has never expressly considered the issue in a FOIA case, it has held in other contexts that the defendant bears the "heavy burden" of demonstrating mootness. E.g.. Adams v. Bowater Inc..

(1st Cir. 2002); Nunez-Soto v. Alvarado.

(1st Cir. 1992); accord 15 Moore, supra. § 101.101.

10 2000) (footnote omitted); see also Papa v. United States,

(9th Cir. 2002); Carson v. Dep't of Justice. 631

F .2d 1008, 1015 n .3 0 (D.C. Cir. 1980).

Furthermore, affidavits purporting to establish the adequacy

of an agency's FOIA response must be "relatively detailed and

nonconclusory . . . and . . . submitted by responsible agency

officials in good faith." Maynard v. CIA.

(1st

Cir. 1993). Such affidavits enjoy "'a presumption of good faith,

which cannot be rebutted by purely speculative claims about the

existence and discoverability of other documents.'" I d . at 560

(quoting SafeCard Servs.. Inc. v. SEC.

(D.C.

Cir. 1991) (further internal quotation marks omitted); see also

Carney v. Dep't of Justice.

(2d Cir. 1994).

Caton essentially argues that he has overcome this

presumption with respect to the Hammond declaration by pointing

out the apparent implausibility of her explanation of how the

version of document number 6 released on January 20, 2005, came

into existence. Mem. Opp. Mot. Dismiss 50-55. For the

reasons already discussed, supra, the court believes that this

showing suffices to demonstrate bad faith on the part of the

agency, at least at this early stage of the litigation. Cf.

Maynard.

(refusing to find bad faith in fact

that agency lost file while processing FOIA request then found it

after litigation of plaintiff's FOIA claim had reached appeals

11 court); Sephton v. FBI, ___ F. Supp. 2d ,

(D. Mass. Mar. 29, 2005) (rejecting contention that additional

responsive records might exist as "conjectural and insufficient

to demonstrate bad faith" in face of agency declarations

specifically describing search of files).

The court also notes that the Hammond declaration, though

purportedly submitted pursuant to

, is not

subscribed to as true under penalty of perjury as required by the

statute. Goldman. Antonetti, Ferraiuoli, Axtmaver & Hertell v.

Medfit Int'1. Inc..

(1st Cir. 1993).

Hammond's failure to acknowledge that submitting a declaration

containing false statements subjects the declarant to criminal

liability for perjury,

, is of concern to the

court, particularly in light of the apparently counterfactual

nature of her statement recounting the claimed copying error.

The Secretary rejoins that, whatever the strength of Caton's

showing, "the material fact remains that [he] has received

unredacted copies of both sets of the emails" comprising the

documents originally produced in redacted form as documents

number 6 and 60 and that his FOIA claim is therefore moot. Resp.

O b j . Mot. Dismiss at 3, n. 2. Although the Secretary is correct

that Hammond's dubious explanation of the document number 6 issue

does not necessarily mean that the Department has not made a

complete response to Caton's FOIA request, it nevertheless goes

12 to the heart of how that request was processed and therefore

constitutes the sort of bad faith which prevents the court from

relying on the Hammond declaration in dismissing the case.

Indeed, "[e]ven when the bad faith concerns the underlying

activities that generated the FOIA request rather than the

agency's conduct in the FOIA action itself," the agency's

affidavits will ordinarily fail to carry the day. Rugiero v.

Dep't of Justice.

(6th Cir. 2001). Caton has

therefore made a sufficient showing of bad faith underlying the

Hammond declaration such that it cannot discharge the Secretary's

burden of demonstrating mootness. See Urban v. United States.

(8th Cir. 1995) (reversing dismissal of FOIA claim as

moot given affiant's "inadequate answer" as to agency's custody

of requested record).

Caton's showing of bad faith also entitles him to discovery

on the issue of the adequacy of the response to his initial FOIA

request. Carney.

; Porter v. Dep't of Justice.

(3d Cir. 1983); accord Giza v. Sec'v of Health.

Ed u c . & Welfare.

(1st Cir. 1980) ("To the

extent discovery is allowed in an [sic] FOIA action, it is

directed at determining whether complete disclosure has been made

. . . .") Nevertheless, as in all cases, this court retains

broad discretion over the proper scope of such discovery.

Mavnard.

; Laborers' Int'l Union of N. Am. v.

13 Dep't of Justice,

(D.C. Cir. 1984). At this

stage, Caton may seek discovery concerning only the circumstances

of the creation of the version of document no. 6 contained in the

January 20, 2005, production. Any such discovery shall proceed

in accordance with the Federal Rules of Civil Procedure and shall

be completed by July 1, 2005. Caton may not seek discovery on

any other subject during that time. Following Caton's

opportunity for such limited discovery, the parties shall submit

motions by July 21, 2005, directed toward the further resolution

of this case. Finally, in light of the court's decision on the

Secretary's motion to dismiss, Caton's motion to strike the

Hammond declaration is denied as moot.

Conclusion

For the foregoing reasons, the Secretary's motion to dismiss

(document no. 6) is DENIED. Caton's motion to amend (document

no. 10) is DENIED and his motion to strike the Hammond

declaration (document no. 9) is DENIED as moot. Caton's motions

for leave to file replies and a sur-reply (document nos. 14, 16,

and 17) have been GRANTED and those materials have been

considered in reaching this decision. Caton may seek discovery,

to proceed in accordance with the Federal Rules of Civil

Procedure and to be completed by July 1, 2005, concerning only

the circumstances of the creation of the version of document no.

14 6 contained in the January 20, 2005, production, and no other

subject during that time. The parties shall then submit motions

by July 21, 2005, directed toward the further resolution of this

case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

May 2, 2 0 05

cc: Harold W. Caton, pro se T. David Plourde, Esquire

15