                                                                  [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15002         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 29, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                            D.C. Docket No. 6:09-cv-02162-GAP-GJK

BERNT WALTHER VON GRABE,


llllllllllllllllllllllllllllllllllllllll                       Plaintiff-Appellant,

                                               versus


U.S. DEPARTMENT OF HOMELAND SECURITY,
Immigration & Customs Enforcement,
STATE OF FLORIDA,
GOVERNOR OF THE STATE OF FLORIDA,
in his official capacity,
FLORIDA HOSPITAL,
JOHN DOE 1,
Reg. Nurse, et al.,

llllllllllllllllllllllllllllllllllllllll                       Defendants-Appellees,


SOCIAL SECURITY ADMINISTRATION,


lllllllllllllllllllllllllllllllllllllllll                      Defendant.
                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________

                                       (June 29, 2011)

Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:

       In this case, appellant, proceeding pro se, claimed that U.S. Department of

Homeland Security (“DHS”) violated the Freedom of Information Act (“FOIA”)1

by refusing to provide appellant or his daughter, Vanessa Klein, a copy of the

notice informing Kline that DHS had approved the Form I-130 petition that Klein

had filed in his behalf in 1995.2 The district court dismissed the claim for lack of

subject matter jurisdiction because the claim was moot; DHS had provided

appellant with a duplicate or copy of the document approving a Form I-130.

Again proceeding pro se, he appeals the dismissal, claiming inter alia that,

although he had received the requested document, the court should have awarded

him litigation costs because he substantially prevailed in litigating his claim.3 He

       1
           5 U.S.C. § 552,
       2
           Appellant also sought relief against DHS under 42 U.S.C. §§ 1983 and 1986.
       3
          Appellant also appeals the court’s dismissal of his §§ 1983 and 1986 claims. He failed
to challenge the dismissal in his original brief; he did so in his reply brief, but that does not

                                                2
prevailed, he argues, because “for years,” and after numerous contacts and much

correspondence, DHS had refused to provide him or his daughter with a duplicate

or copy of the document that his daughter had filed on his behalf in 1995.

       Under the FOIA, “each agency, upon any request for records which

(i) reasonably describes such records and (ii) is made in accordance with published

rules stating the time, place, fees (if any), and procedures to be followed, shall

make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The

DHS regulations provide that a FOIA request should be sent to the central FOIA

office of the DHS component agency involved, or if such central office cannot be

determined, then the request should be sent to the disclosure officer at DHS in

Washington, D.C. 6 C.F.R. § 5.3(a).

       If a person receives all the information he has requested under FOIA, even

if the information was delivered late, his FOIA claim is moot to the extent that

such information was sought. Lovell v. Alderete, 630 F.2d 428, 430-31 (5th Cir.

1980). See Chilivis v. S.E.C., 673 F.2d 1205, 1209-10 (11th Cir. 1982) (holding

that once the agency provided access to the requested documents, the FOIA

plaintiff had no legally cognizable interest in challenging an order exempting the


entitle him to appellate review of the dismissal. We therefore do not address it. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (acknowledging that we do not address arguments
raised for the first time in a pro se litigant’s reply brief).

                                               3
documents from review). A claim’s mootness, however, “does not automatically

preclude an award” of damages or attorney’s fees, which requires the satisfaction

of certain specific requirements. Lovell, 630 F.2d at 431.

      Under the FOIA, “[t]he court may assess against the United States

reasonable attorney fees and other litigation costs reasonably incurred in any case.

. . in which the complainant has substantially prevailed.” 5 U.S.C.

§ 552(a)(4)(E)(i). In 2007, amendments to FOIA expanded on the meaning of

“substantially prevailed,” and added a clause (ii), which provides that “a

complainant has substantially prevailed if the complainant has obtained relief

through either--(I) a judicial order, or an enforceable written agreement or consent

decree; or (II) a voluntary or unilateral change in position by the agency, if the

complainant’s claim is not insubstantial.” Id. § 552(a)(4)(E)(ii).

      Prior to the 2007 amendments, this Court had interpreted the meaning of

“substantially prevailed” as follows:

      [t]he mere fact that the information sought was not released until after
      the suit was instituted without more is insufficient to establish that [a
      plaintiff] “substantially prevailed” in . . . his suits. Absent a court
      order in his favor, [a] plaintiff must show that prosecution of the
      action could reasonably be regarded as necessary to obtain the
      information and that the action had a substantive causative effect on
      the delivery of the information.




                                          4
Lovell, 630 F.2d at 432 (footnote, quotation, and citation omitted). In other words,

the plaintiff must have “establish[ed] that the lawsuit provided the necessary

impetus for disclosure.” Chilivis, 673 F.2d at 1212.

      The district court correctly found that appellant was not entitled to recover

his costs because he had not substantially prevailed in his law suit. He failed to

contact the proper FOIA office with his request; moreover, DHS had never refused

to provide the requested document.

      During the proceedings in the district court, appellant alleged that the court

was biased against him. The court construed the allegation as a motion to recuse.

Under 28 U.S.C. § 455, a judge “shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned” or “[w]here he has a

personal bias or prejudice concerning a party . . . .” 28 U.S.C. §§ 455(a), (b)(1).

“Under § 455, the standard is whether an objective, fully informed lay observer

would entertain significant doubt about the judge’s impartiality.” Christo v.

Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). Having reviewed the record, we

find no basis for appellant’s allegation. The court therefore did not abuse its

discretion in refusing to recuse.

      AFFIRMED.




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