     Case: 13-20094       Document: 00512432398         Page: 1     Date Filed: 11/06/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 6, 2013

                                       No. 13-20094                        Lyle W. Cayce
                                                                                Clerk

BENJAMIN OSHEA CALHOUN,

                                                  Plaintiff - Appellant,
v.

FEDERAL BUREAU OF INVESTIGATION and UNITED STATES OF
AMERICA,

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3044


Before SMITH, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       This case arises under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. Benjamin Oshea Calhoun, proceeding pro se, sought an injunction to
compel the Federal Bureau of Investigation (“FBI”) to comply with his series of
FOIA requests. The FBI then produced a set of responsive documents. Upon the
FBI’s motion, the district court dismissed the lawsuit, holding that the




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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documents rendered the controversy moot.          The district court also denied
Calhoun’s motion for a new trial.
                                         I.
      Calhoun filed his first FOIA request in November 2009. Calhoun sought
copies of “all records” pertaining to him, including surveillance records, or
records of “electronic eavesdropping.” In a written response, the FBI informed
Calhoun that it was unable to identify any such records. The FBI also informed
Calhoun of his right to appeal the decision. Approximately one year later, in
November 2010, Calhoun sent an e-mail to the FBI complaining of “illegal
hacking and fake web pages” based on his apparent inability to access a certain
website. The FBI responded, explaining that the described problem was not an
FBI matter. From December 2010 through May 2012, Calhoun filed three more
FOIA requests, seeking the same information he had sought in November
2009—“all records” pertaining to him, including surveillance records.            In
January 2011, and again in May 2012, the FBI informed Calhoun that it was
unable to identify responsive records. Each time, the FBI restated that Calhoun
had a right to appeal. In September 2012, Calhoun sent a letter to the attention
of FBI Director Robert Mueller, complaining that his April 2012 request had not
been fulfilled and again requesting “all records.”
      Calhoun filed his lawsuit in the United States District Court for the
Southern District of Texas on October 5, 2012, seeking an injunction to compel
the FBI to comply with his FOIA requests. Calhoun asserted that the FBI had
failed to comply with the applicable time limitations in § 552(a)(6)(A) and that
therefore he had exhausted his administrative remedies pursuant to
§ 552(a)(6)(C). During the pendency of the litigation, on December 10, 2012, the
FBI released thirty-eight pages of responsive records.1 With the exception of

      1
         The FBI reviewed forty-one pages, withholding three pages because they were
duplicates.

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                                     No. 13-20094

nine pages that included state criminal history records and one page that
provided Calhoun’s driver’s license information, all released pages involved
Calhoun’s prior correspondence with the FBI—either requests for information
sent by Calhoun or responses provided by the FBI. The FBI then moved to
dismiss the lawsuit, arguing that Calhoun had failed to exhaust his
administrative remedies and that the production of responsive records rendered
the case moot. In an order dated January 30, 2013, the district court dismissed
Calhoun’s action on mootness grounds. The district court held that a viable case
or controversy no longer remained, observing that while Calhoun “deplore[d] the
tardiness” of the FBI’s response and production, Calhoun did not deny that he
had received the documents. The district court subsequently denied Calhoun’s
motion for a new trial.2 This appeal followed.
                                            II.
       We review de novo a district court’s grant of a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1). Spotts v. United States, 613 F.3d
559, 565 (5th Cir. 2010). We apply the same standard as the district court.
Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 663 (5th Cir. 2007). Under Rule
12(b)(1), a district court may dismiss for lack of subject matter jurisdiction on
any one of three separate bases: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Spotts, 613 F.3d at 566 (internal quotation marks omitted). Because the district
court here did not resolve any disputed facts, our review is limited to whether
the district court’s application of the law is correct and, to the extent that the
district court’s decision was based on undisputed facts, whether those facts are


       2
        There was no trial in this case. We construe Calhoun’s motion for a new trial as a
motion for reconsideration. See Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006) (“We
must construe the pleadings of pro se litigants liberally . . . .”).

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indeed undisputed. See id. We review a district court’s ruling on a motion for
reconsideration for abuse of discretion. Johnson v. Diversicare Afton Oaks, LLC,
597 F.3d 673, 677 (5th Cir. 2010).
        Federal   subject   matter    jurisdiction   is   limited   to   “cases”   and
“controversies.” U.S. Const. art. III, § 2, cl. 1. This limitation has given rise to
the concept of standing: “a plaintiff must have suffered . . . an actual injury
traceable to the defendant and likely to be redressed by a favorable judicial
decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation marks
omitted). Even if a plaintiff has standing at the commencement of a case, when
intervening circumstances render the court no longer capable of providing
meaningful relief to the plaintiff, the case is considered moot. Ctr. for Biological
Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 425 (5th Cir. 2013). Federal
courts have no constitutional authority to resolve moot disputes.              Envtl.
Conservation Org. v. City of Dall., 529 F.3d 519, 525 (5th Cir. 2008).
                                         III.
        Under the FOIA, a plaintiff must exhaust his administrative remedies
prior to seeking judicial review of a federal agency’s decision. § 552(a)(6)(A); see
also Kemmerly v. U.S. Dep’t of Interior, 430 F. App’x 303, 304 (5th Cir. 2011)
(unpublished but persuasive) (citing Voinche v. F.B.I., 999 F.2d 962, 963 (5th
Cir. 1993)). Where an agency fails to respond to a FOIA request in a timely
manner, however, the requester is deemed to have exhausted his remedies and
may bring an action in federal court. § 552(a)(6)(C). Such an action challenges
the failure of the agency to act at behest of the requester. Voinche, 999 F.2d at
963.
        Here, Calhoun grounded his request for injunctive relief in the FBI’s
alleged failure to respond to his FOIA requests, citing § 552(a)(6)(C). Even
assuming that, prior to filing his action, Calhoun had exhausted his
administrative remedies regarding the FBI’s lack of response to his FOIA

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requests, the district court correctly determined that Calhoun’s action was
rendered moot when the FBI produced responsive records. See Voinche, 999
F.2d at 963 (“Insofar as [the plaintiff] challenged the tardiness of the FBI’s
response, his claim [under the FOIA] was rendered moot by the FBI’s response
to his request.”). Calhoun has not disputed that those records were produced or
that they were responsive to his request. We therefore conclude, based on the
complaint and the undisputed production of thirty-eight pages of records, that
a viable case or controversy no longer remained.
      Assuming arguendo that Calhoun is claiming that the FBI failed to
produce all of the requested records, those claims have not been exhausted.
Liberally construed, Calhoun’s brief seems to contend that the FBI must be
withholding    records   that   are   responsive   to     his   litany   of   FOIA
requests—including requests for records of “photographic surveillance” and
intercepted “oral, wire, or electronic communication[s]” and records relating to
the installation of the devices used to gather that information. We note that the
FBI did not assert any exemptions to that effect. Nevertheless, if Calhoun
wishes to contest the absence of such records, he must do so through the
appropriate administrative appeals process. Accordingly, to the extent Calhoun
has claims that were not mooted by the FBI’s production of records, those claims
were properly dismissed. See Taylor v. U.S. Treasury Dep’t, 127 F.3d 470, 477
(5th Cir. 1997) (claims not properly exhausted are subject to dismissal).
      We conclude that the district court committed no error in dismissing the
lawsuit on mootness grounds. To the extent that any of Calhoun’s claims are not
moot, however, we conclude that those claims are subject to dismissal for failure




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                                       No. 13-20094

to exhaust administrative remedies. We further conclude that the district court
did not err in denying Calhoun’s motion for a new trial.3 We AFFIRM.




       3
         Calhoun asserts other arguments in his brief that are somewhat difficult to
comprehend. Calhoun argues that the district court erred in not ruling on his “written
objections,” but the district court explicitly stated in its order that it had considered those
objections, however. Calhoun also contends that the FBI engaged in bad faith, but provides
no supporting reasoning. We reject all other arguments not specifically addressed here.

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