                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUL 11 2011

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 JAMES ARTHUR MATTSON,                                  No. 10-16112

                Plaintiff - Appellant,                  D.C. No. 3:08-cv-04431-VRW

   v.
                                                        MEMORANDUM *
 FEDERAL BUREAU OF
 INVESTIGATION,

                Defendant - Appellee.


                       Appeal from the United States District Court
                         for the Northern District of California
                       Vaughn R. Walker, District Judge, Presiding

                          Argued and Submitted June 14, 2011 **
                                San Francisco, California

Before: SCHROEDER and BEA, Circuit Judges, and ANELLO, District Judge.**


        James Arthur Mattson appeals the district court’s denial of his motion for


          *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.

         **    The Honorable Michael M. Anello, United States District Judge for the Southern
               District of California, sitting by designation.



                                                1
attorney fees and costs under the Freedom of Information Act (“FOIA”), 5 U.S.C.

section 552 et seq. Mattson contends the district court failed properly to apply the

2007 Openness Promotes Effectiveness in our National Government Act

amendments to the FOIA fee provision. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

      To be eligible for fees under the FOIA fee section at issue, a party must show

the filing of the lawsuit brought about “a voluntary or unilateral change in position

by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii). Before Mattson filed the lawsuit, the

Government informed Mattson it would conduct a further search for cross

references.1 ER 108 ¶ 12. The record shows the documents produced after

Mattson filed his lawsuit were located due to the Government’s efforts to search for

other files it might have at its local offices and cross references. ER 171 and 189.

Mattson did not establish the Government changed its position because, for one

thing, Mattson never proved the Government ever took the position that it was

refusing to produce these documents. Accordingly, the district court correctly

concluded, under the FOIA fee provision, that Mattson is not eligible for fees under

the FOIA.




         1
            Cross references are defined as “a mention of you by name or personal identifier in a
file relating to another individual, organization, event, activity, or the like.” ER 171.

                                                 2
      We decline to address Mattson’s contention that the Government waived its

right to challenge Mattson’s entitlement to fees. Because Mattson is not eligible for

fees, we do not consider issues pertaining to entitlement to fees. Summers v. Dept.

of Justice, 569 F.3d 500, 505 (D.C. Cir. 2009).

      AFFIRMED.




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