United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIM0THY L. BROOKS UNITED STATES DISTRICT JUDGE
the Court are the Social Security Administration's
("SSA") Motion to Dismiss (Doc. 7) and Brief in
Support (Doc. 8), Atlasware, LLC's Response (Doc. 11),
and the SSA's Reply (Doc. 18); Atlasware's Motion for
Leave to File First Amended Complaint (Doc. 8) and the
SSA's Response (Doc. 13); and the SSA's Motion to
Stay Discovery (Doc. 14) and Brief in Support (Doc. 15). For
the reasons stated herein, the Court GRANTS the SSA's
Motion to Dismiss (Doc. 7) and DENIES Atlasware's Motion
for Leave (Doc. 12). The SSA's Motion to Stay Discovery
(Doc. 14) is MOOT. Atlasware's case is DISMISSED.
November 6, 2013, an attorney named Ed Goldner sent a Freedom
of Information Act ("FOIA") request to the SSA
seeking certain identifying information about "all
attorneys who are currently representing clients in ongoing
social security disability claims" and "all
non-attorney representatives who are currently representing
clients in ongoing social security disability claims that are
not eligible for direct payment." (Doc. 1-1). The
request was typed on letterhead for "The Law Offices of
Ed Goldner, P.C." Id. On June 12, 2014, the SSA
provided Mr. Goldner with 1, 221 pages of responsive records,
but withheld some requested information pursuant to FOIA
Exemption 6. (Doc. 1-2, p. 1); 5 U.S.C. § 552(b)(6)
(providing an exemption to disclosure for "personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal
privacy"). Mr. Goldner, again on his law office's
letterhead, sent a letter of appeal on June 13, 2014, arguing
that the SSA erred in relying on Exemption 6 to justify
withholding certain information. (Doc. 1-3). On September 24,
2014, the SSA replied to Mr. Goldner's appeal by
releasing a portion of the previously withheld information.
(Doc. 1-4). For some time between that date and the filing of
the instant suit, Mr. Goldner apparently availed himself of
the Office of Government Information Services'
("OGIS") mediation services, as was suggested by
the SSA's letter responding to his appeal. Id.
at 2. During this process, on September 4, 2015, Mr. Goldner
sent an email to an OGIS mediator that declared, in pertinent
part, "[m]y client, Atlasware, LLC, has been waiting for
this information for years." (Docs. 11, p. 3; 11-1, p.
filed the instant suit on March 15, 2016, seeking the
Court's declaration that the SSA failed to comply with
the FOIA. (Doc. 1). The SSA responded by filing a Motion to
Dismiss on May 13, 2016. The Motion argues that the Court
lacks subject-matter jurisdiction because Atlasware does not
have standing to sue, and because venue in the Western
District of Arkansas is improper. In response, Atlasware
argues that Mr. Goldner's September 4, 2015
identification of it as his client suffices to confer
standing, and alternatively seeks leave to add Mr. Goldner as
a plaintiff. Atlasware also insists that venue in this Court
is proper, but again in the alternative, asks the Court to
transfer the case to the Western District of Texas if it is
Court must begin by determining whether Atlasware has
standing to sue. Article III of the Constitution limits the
jurisdiction of federal courts to "cases" and
"controversies." U.S. Const. Art. Ill. § 2;
Lujan v. Defs. of Wildlife, 504 U.S. 555, 559
(1992). "[T]he core component of standing is an
essential and unchanging part of the case-or-controversy
requirement of Article III, " and so without it, federal
courts lack subject-matter jurisdiction. Id. at 560;
Iowa League of Cities v. E.P.A., 711 F.3d 844, 869
(8th Cir. 2013) ("If a litigant lacks Article III
standing to bring his claim, then we have no subject matter
jurisdiction over the suit").
contends that Atlasware lacks standing because it did not
make the FOIA request described in the Complaint. Indeed,
Atlasware is not referenced in Mr. Goldner's November 6,
2013 letter requesting documents, (Doc. 1-1), nor is it
referenced in Mr. Goldner's June 13, 2014 letter of
appeal, (Doc. 1-3). "[A] person whose name does not
appear on a request for records has not made a formal request
for documents within the meaning of [the FOIA]."
McDonnell v. United States, 4 F.3d 1227, 1237-38
(3rd Cir. 1993). Such a person "may not sue in district
court when the agency refuses to release requested documents
because he has not administratively asserted a right to
receive them in the first place." Id. at 1237.
This principle applies equally when an attorney later
purports to have been requesting documents on behalf of a
client whom he did not disclose at the time of the request.
See Unigard Ins. Co. v. Dep't of Treasury, 997
F.Supp. 1339 (S.D. Cal. 1997). Furthermore, at least one
federal court has found that an attorney's mere mention
of a client does not suffice to later confer standing upon
the client. See Three Forks Ranch Corp. v. Bureau of
Land Mgmt, Little Snake Field Office, 358
F.Supp.2d 1 (D.D.C. 2005). Instead, an attorney must
specifically state that he is requesting documents "on
behalf of a client. Id. at 3.
acknowledges the principle articulated in the aforementioned
cases, but argues that Mr. Goldner's September 4, 2015
email distinguishes this case from those. That contention can
easily be dismissed. The email states that "[m]y client,
Atlasware, LLC, has been waiting for this information for
years." (Doc. 11-1, p. 2). However, Mr. Goldner did not
send the email to employees of the SSA, see Doc.
18-1; rather, he addressed the email to employees of OGIS.
(Docs. 11, p. 3; 11-1). Even if the email were addressed to
SSA employees, moreover, it would not suffice to confer
standing. Mr. Goldner sent the email after he had already
filed his initial FOIA request and appealed the partial
denial of that request. Thus irrespective of the passing
mention of Atlasware in Mr. Goldner's ex post
facto email, it was Mr. Goldner, not Atlasware, who made
the "request for information under the FOIA" and it
was Mr. Goldner's, not Atlasware's, request that
"the petitioned agency deniefd]."
McDonnell, 4 F.3d at 1238 (citing United States
v. Richardson, 418 U.S. 166, 171 (1974)). Mr.
Goldner's "name alone appears on the requests for
records submitted to the" SSA, and "[h]e alone
pursued the administrative appeal of [the SSA's]
decision not to release the requested information, the
exhaustion of which [is] a prerequisite to [the Court's]
exercise of subject matter jurisdiction." Id.
So, Mr. Goldner alone "has standing to pursue this
order to address this jurisdictional defect, Atlasware seeks
leave to file an amended complaint which adds Mr. Goldner as
a plaintiff. See Doc. 12-1. 28 U.S.C. § 1653
instructs that "[defective allegations of jurisdiction
may be amended, upon terms, in the trial or appellate
courts." The Supreme Court discussed § 1653 in
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826
(1989), and it is fair to say the Court interpreted the
statute narrowly. Section 1653 "speaks of amending
'allegations of jurisdiction, ' which
suggests that it addresses only incorrect statements about
jurisdiction that actually exists, and not defects in the
jurisdictional facts themselves." Id. at 831
(emphasis in original). For this reason, the
Newman-Green Court held that § 1653 could not
be used to amend a complaint "to drop a nondiverse party
in order to preserve statutory jurisdiction."
Id. The Eighth Circuit has interpreted § 1653
in an identical manner in the specific context of standing.
In Iron Cloud v. Sullivan, 984 F.2d 241 (8th Cir.
1993), the plaintiffs, who all lacked standing, moved to
amend their complaint to add a plaintiff who would have had
standing. Id. at 243-44. The Eighth Circuit denied
the motion, holding "that § 1653 is not
appropriately invoked to amend the complaint to add
plaintiffs with standing ...." Id. at 243.
light of these interpretations, the Court must deny
Atlasware's Motion for Leave to File (Doc. 12). Atlasware
seeks leave not to cure a defective allegation of
jurisdiction, but instead to cure a defect in the
jurisdictional facts themselves; namely, to create
subject-matter jurisdiction where none otherwise exists by
adding a plaintiff with standing. As this Motion has now been
denied, the Court must dismiss this case because it lacks
subject-matter jurisdiction. Mr. Goldner may file a
subsequent suit, naming himself as the plaintiff, should he
Court writes on to explain why it believes venue in the
Western District of Arkansas would likely be improper should
Mr. Goldner choose to file a subsequent suit in this Court.
It does so to preserve the resources of the judiciary and the
parties, not to conclusively decide the issue. Thus, what
follows should not be interpreted by the parties as binding
the Court should Mr. Goldner nonetheless decide to file a
subsequent suit in this district.
for actions brought under the FOIA lies within the district
(i) in which the complainant resides, or (ii) has his
principal place of business, or (ii) in which the agency
records are situated, or (iv) in the District of Columbia.
See 5 U.S.C. § 552(a)(4)(B). Mr. Goldner
resides in the Western District of Texas, (Doc. 11, p. 6),
which is also where his principal place of business is
located, see Doc. 1-1. This Court is obviously not
within the District of Columbia, so Atlasware's Response
Brief argued that the agency records are "situated"
in the Western District of Arkansas. It reasoned that the
records are "situated" in this district because (a)
the SSA has an office here, and (b) due to the advent of
"cloud computing, " the requested records are
equally accessible anywhere, including from the SSA office in
this district. (Doc. 11, p. 5).
problem of evaluating where information available on the
internet is situated for jurisdictional-or in this case,
venue-purposes is generally a familiar one. See Zippo
Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.
Pa. 1997). And, this Court recognizes that ongoing
technological advances affecting how such information is
stored and accessed require courts to continuously fine-tune
the process for making that evaluation. But, the Court
has grave doubts about whether Atlasware's conception of
§ 522(a)(4)(B)'s "situated" clause can be
reconciled with the text and purpose of that statute.
U.S.C. § 552(a)(4)(B) was added to the FOIA in 1974,
see Pub. L. No. 93-502, 88 Stat. 1561 (Nov. 21,
1974), long before even the wisest members of Congress could
have contemplated the advent of cloud computing. The relevant
part of the section was undoubtedly included to inform courts
and litigants where causes of action under the FOIA could be
brought. Its audience at the time, moreover, would have
understood it to offer a limited number of venues from which
to choose: where the plaintiff was located, where the boxes
of papers were, or the District of Columbia. 5 U.S.C. §