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Osterman v. U.S. Army Corps of Engineers

United States District Court, W.D. Washington, Seattle

October 30, 2014





Defendant, U.S. Army Corps of Engineers ("the Corps"), moves this Court pursuant to Federal Rule of Civil Procedure 12(h)(3) for an order dismissing this action for lack of subject matter jurisdiction. Dkt. No. 20. Defendant charges that Plaintiffs lack standing to bring this suit. Id. Having reviewed the motion, Plaintiffs' opposition, and the reply thereto, as well as the relevant record evidence, the Court GRANTS the motion to dismiss. The reasoning for the Court's decision is set forth below.


Plaintiffs Tom and Cathleen Osterman, husband and wife, unsuccessfully petitioned the Corps for a permit to construct a private boat dock in the waters of the United States adjacent to their residence. Dkt. No. 1 "Comp." at ¶ 5. Dennis D. Reynolds, doing business as "Dennis D. Reynolds Law Office, " provided legal representation to Plaintiffs in connection with their unsuccessful permit application. On November 7, 2012, Mr. Reynolds submitted a request under the Freedom of Information Act ("FOIA") to the Corps for the "Complete File for Osterman permit application (NWS-2009-569)." Dkt. No. 20, Ex. 2. Mr. Reynolds did not indicate in the FOIA request that he was acting in a representative capacity on behalf of Tom or Cathleen Osterman. Id. The name "Osterman" does not appear in the FOIA request other than to identify the particular permit application for which the FOIA request was made. Id.

Also on November 7, 2012, Mr. Reynolds sent an e-mail to the Corps stating: "Tom Osterman has requested that I review the [Corps'] entire file compiled in his matter. When could it be made available for my review? Please advise." Id. at Ex. 1. The e-mail makes no mention of the FOIA request. Id.

The Corps provided Mr. Reynolds with documents responsive to the FOIA request on December 10, 2012 and January 10, 2013, but withheld certain documents as exempt. Thereafter, on January 31, 2013, Mr. Reynolds filed a FOIA administrative appeal, purportedly on behalf of "Mr. and Mrs. Thomas Osterman... in connection with their November 7, 2012 [FOIA]... request to the [Corps]..." Id. at Ex. 5. Before any decision was made on the administrative appeal, however, the Ostermans filed this lawsuit. While Mr. Reynolds is counsel of record for Plaintiffs in this lawsuit, he is not a party-plaintiff. See Comp.


A. Standard of Review

Federal Rule of Civil Procedure 12(h)(3) provides that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." The effect of Rule 12(h)(3) is to extend beyond the pleading stage the time within which a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be brought. See Wood v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir. 2012).

Rule 12(b)(1) jurisdictional attacks can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir 2000) (citing 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.30[4], at 12-38 to 12-41 (3d ed.1999)). In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. Id.

The instant motion constitutes the latter. With a factual Rule 12(b)(1) attack, a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment. Gemtel Corp. v. Community Redevelopment Agency, 23 F.3d 1542, 1544 n. 1 (9th Cir. 1994) (citing Mack v. South Bay Beer Distributors., Inc., 798 F.2d 1279, 1282 (9th Cir.1986)). It also need not presume the truthfulness of the plaintiff's allegations. White, 227 F.3d at 1242 (citing Moore's Federal Practice, ¶ 12.30[4], at 12-38).

B. The Ostermans Lack Standing to Sue the Corps under this FOIA Action

It is black letter law that a litigant must have standing in order to invoke the power of a federal court. Williams v. Boeing Co., 517 F.3d 1120, 1126-1127 (9th Cir. 2008) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). In the context of FOIA, standing is conferred on an individual whose FOIA request has been denied in whole or part. See e.g. United States v. Richardson, 418 U.S. 166, 204 (Stewart, J. dissenting) (1974). This means that the individual who made the FOIA request is the only individual who has standing to challenge an agency's response to that request. See McDonnell v. United States, 4 F.3d 1227, 1238 (3rd Cir. 1993) (noting that the only person who has standing to invoke the power of the federal courts in order to seek a remedy for a FOIA violation is the person who made the FOIA request); Wetzel v. U.S. Dep't. of Veterans Affairs, 949 F.Supp.2d 198, 202 (D.D.C. 2013) ("[I]f a party has not made a request within the ...

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