Walsh, Dennis R. v. US Dept Veterans ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1915
DENNIS R. WALSH,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-225—William C. Griesbach, Judge.
____________
ARGUED JANUARY 4, 2005—DECIDED MARCH 10, 2005
____________
Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
EVANS, Circuit Judge. In January 2002, Dennis Walsh
sent a Freedom of Information Act (FOIA) request to the
United States Department of Veteran Affairs seeking “all
records maintained by your agency pertaining to myself,
covering the period January 1, 1973 to current date.” Walsh
received a set of documents from the VA several months
later. Although he also received a letter saying he had been
given his “entire VA claims file,” Walsh actually did not
2 No. 04-1915
receive the rest of the records he requested for over another
year. That delay forms the basis of this appeal.
Walsh knew that the first set of records he received was
incomplete because it did not include documents associated
with his treatment during 1977 and 1985-86 at the Depart-
ment of Veterans Affairs Blind Rehabilitation Center in
Hines, Illinois. In April 2002, Walsh wrote to the FOIA
officer at the VA regional office in Milwaukee to inform him
that the file he received was incomplete and to request the
records from the rehabilitation center in Hines. Walsh also
sent an FOIA request for those records directly to the VA
hospital in Hines. The hospital informed Walsh that it could
not retrieve his records with the information he provided.
Walsh filed an administrative appeal, which included more
specific information about his stay in the Hines hospital. He
received eight documents from the hospital on June 3, 2002.
Knowing that there were still more records, Walsh traded
several letters with the Hines facility over the summer,
with Walsh requesting records and the hospital denying
that it had them. In September the hospital informed Walsh
that his records were transferred (when, we don’t know) to
Milwaukee, but the VA regional office there told Walsh it
was up to him to find the records. Walsh filed an FOIA
administrative appeal in December 2002. He filed this suit
in March 2003. Two months later Walsh received a packet
of medical records, along with a letter stating that the VA
was continuing to look for additional documents. On June
24, 2003, Walsh received what he acknowledges are all the
remaining records covered by his various requests. Still,
Walsh went ahead with his suit, seeking a judicial declara-
tion that he was entitled to those records, along with costs
and attorney fees. The district court granted the VA’s motion
for summary judgment, finding that Walsh’s claim was moot.
Walsh appeals the grant of the VA’s motion and the denial
of his motion for summary judgment, arguing that his claim
No. 04-1915 3
is not moot under the FOIA and that he is entitled to
judicial review under the Administrative Procedures Act
(APA).
We review the district court’s decision de novo. See Allen
v. City of Chicago, 351 F.3d 306, 311 (7th Cir. 2003). In
general, “[o]nce the government produces all the documents
a plaintiff requests, her claim for relief under the FOIA
becomes moot.” Anderson v. U.S. Dep’t of Health & Human
Servs., 3 F.3d 1383, 1384 (10th Cir. 1993). See also Matter
of Wade, 969 F.2d 241, 248 (7th Cir. 1992) (“In FOIA cases,
mootness occurs when requested documents have already
been produced.”); DeBold v. Stimson, 735 F.2d 1037, 1040
(7th Cir. 1984) (“Once the requested documents have been
produced, the claim for relief under FOIA becomes moot.”);
Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)
(“[H]owever fitful or delayed the release of information
under the FOIA may be, once all requested records are
surrendered, federal courts have no further statutory
function to perform.”).
Walsh contends that two related exceptions to the moot-
ness doctrine apply to his claim: cases involving “voluntary
cessation,” see Milwaukee Police Ass’n v. Jones, 192 F.3d
742, 747 (7th Cir. 1999), and actions that are “capable of
repetition yet evading review,” see Krislov v. Rednour, 226
F.3d 851, 858 (7th Cir. 2000). Whether either doctrine
applies to this case depends on the likelihood that Walsh
will request additional documents and that the VA will again
fail to produce them in a timely manner. See Milwaukee
Police Ass’n, 192 F.3d at 747 (“Voluntary cessation of al-
legedly illegal conduct does not render a case moot unless
the defendant can demonstrate that ‘there is no reasonable
expectation that the wrong will be repeated.’ ” (quoting
DiGiore v. Ryan, 172 F.3d 454, 466 (7th Cir. 1999)));
Krislov, 226 F.3d at 858 (“This exception to the mootness
doctrine is applicable . . . where the challenged situation is
likely to recur and the same complaining party would be
subjected to the same adversity.”).
4 No. 04-1915
The theoretical possibility that Walsh might again have
to wait for requested records is not enough to keep his claim
alive. See In re Associated Press, 162 F.3d 503, 511 (7th Cir.
1998) (requiring “reasonable expectation that the same
complaining party would be subjected to the same action
again” (quoting Weinstein v. Bradford, 423 U.S. 147, 149
(1975))). Therefore, we agree with the district court’s
finding that Walsh’s claim under the FOIA was moot. As
the district court found, there is little reason to think that
Walsh will ever request additional records. Because locating
the records he has received required so much effort and he
already has the whole kit and caboodle, the faint possibility
that he might generate more records in the future, request
them, and wait too long to receive them is an insufficient
reason for saying this case is not moot. And while it is not
beyond the realm of possibility that Walsh will some day
find reason to request additional documents, there is no
reason to believe that the VA will again fail to provide them
in a timely manner. The delays he unfortunately encoun-
tered seem to have been caused by simple confusion about
the physical location of the records. In fact, part of the
blame lies with Walsh, who only requested records from one
VA regional office in Milwaukee because he did not realize
there were two regional offices there. Now that he knows
better where to send his requests, Walsh likely would
receive future records on time. In making these observa-
tions we specifically note that there is no hint here that the
VA was acting in bad faith.
Walsh also argues that the Administrative Procedure Act,
5 U.S.C. §§ 701 et seq., gives him an independent cause of
action. He claims this separate action is necessary because
the FOIA’s citizen suit provision provides only injunctive
relief and has no remedy for cases such as this one in which
an agency is late in producing the requested records.
Walsh cites Bennett v. Spear, 520 U.S. 154 (1997), for the
proposition that the APA provides an independent cause of
No. 04-1915 5
action absent an express congressional intent for an ex-
clusive statutory remedy. But the Court there twice noted
that under the APA, judicial review is appropriate for an
agency action only when “there is no other adequate remedy
in a court.” Id. at 162 and 175 (quoting 5 U.S.C. § 704). And
here, the FOIA provides an adequate remedy. Under either
statute, Walsh’s remedy would be what he has already
received—a court order requiring total compliance with his
request. Thus, the APA does not provide an alternate means
for Walsh to keep his suit alive. See Bowen v. Massachusetts,
487 U.S. 879, 903 (1988) (“Congress did not intend the
general grant of review in the APA to duplicate existing
procedures for review of agency action. . . . § 704 ‘does not
provide additional judicial remedies in situations where the
Congress has provided special and adequate review proce-
dures.’ ”).
Although Walsh is correct when he argues that our ruling
leaves someone making a FOIA request without recourse if
an agency belatedly complies with that request, he is wrong
when he argues that Congress must not have intended that
result. The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-10-05