Dennis M. Buckovetz, an individual v. United States Department of the Navy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS M. BUCKOVETZ, an individual,
Plaintiff-Appellant,
and
LYNNE M. BIRD, an individual,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
THE NAVY,
Defendant-Appellee.
No. 23-55284
D.C. No.
3:21-cv-00640-WQH-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted March 27, 2024
Pasadena, California
Before: GRABER, IKUTA, and FORREST, Circuit Judges.
Plaintiff Dennis M. Buckovetz appeals from the judgment in favor of
Defendant United States Department of the Navy (Navy) in this Freedom of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 5 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Information Act (FOIA) action. We vacate the judgment and remand with the
instruction that the district court dismiss the action as nonjusticiable. See Gonzales
v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (“It is a prerequisite of
justiciability that judicial relief will prevent or redress the claimed injury, or that
there is a significant likelihood of such redress.”); see also Arizonans for Official
English v. Arizona, 520 U.S. 43, 73 (1997) (“When the lower federal court lacks
jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the
purpose of correcting the error of the lower court in entertaining the suit.” (cleaned
up) (citations omitted)).
When all documents responsive to a FOIA request have been produced, a
party’s FOIA claim ceases to present a live case or controversy. Eventual
production, “however belatedly, moots FOIA claims.” Papa v. United States, 281
F.3d 1004, 1013 (9th Cir. 2002) (citation and internal quotation marks omitted).
“That result obtains because once the defendant agency has fully complied with the
FOIA’s production mandate, the plaintiff is no longer suffering or threatened with
‘an actual injury traceable to the defendant’ that is ‘likely to be redressed by a
favorable judicial decision.’” Yonemoto v. Dep’t of Veterans Affs., 686 F.3d 681,
689 (9th Cir. 2012) (citation omitted), overruled in part on other grounds by
Animal Legal Def. Fund v. U.S. FDA, 836 F.3d 987, 989 (9th Cir. 2016) (en banc)
(per curiam).

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Plaintiff filed this action in district court years after the Navy produced the
responsive documents. Despite Plaintiff’s speculative contention that there may
exist additional documents that were either destroyed or concealed, nothing in the
record supports a reasonable inference that there were unproduced responsive
documents at the time Plaintiff filed this action. Accordingly, the district court
lacked jurisdiction at the time the case was filed. See, e.g., Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (noting that
courts have “an obligation to assure . . . that [the plaintiff] had Article III standing
at the outset of the litigation”); see also id. at 191 (“Standing admits of no . . .
exception; if a plaintiff lacks standing at the time the action commences, . . . the
complainant [is not entitled] to a federal judicial forum.”).
The judgment of the district court is vacated, and the case is remanded with
the instruction to dismiss the action as nonjusticiable.
VACATED and REMANDED.

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