Zaldivar v. United States Department of Veterans Affairs
695 F. App'x 319
| 9th Cir. | 2017Background
- Jose Adalberto Zaldivar, Sr., sued under FOIA and the Privacy Act seeking records related to his veterans benefits and certain redactions.
- District court granted summary judgment for the agency on FOIA/PA requests dated April 26, 2012 and May 20, 2013.
- District court dismissed as time-barred Zaldivar’s claims arising from FOIA/PA requests dated October 20, 2002; April 13, 2005; and July 10, 2007.
- District court dismissed a Bivens damages claim and claims against the VA Office of Inspector General for lack of waiver of sovereign immunity and lack of subject matter jurisdiction.
- District court denied appointment of pro bono counsel; Zaldivar appealed pro se. Ninth Circuit affirmed on all counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search and exemptions for 2012 & 2013 FOIA/PA requests | Agency failed to conduct a reasonable search and improperly withheld/redacted records | Agency conducted adequate searches and properly applied FOIA/PA exemptions to redactions | Court affirmed summary judgment for agency: no genuine dispute about adequacy or exemption applicability |
| Timeliness of earlier FOIA/PA claims (2002, 2005, 2007) | Continuing violation doctrine saves claims from statute of limitations | Claims are time-barred under PA two-year limit and §2401(a) six-year catchall | Dismissed as time-barred; continuing violation doctrine does not apply |
| Bivens damages claim against federal agencies | Entitled to damages under Bivens against responsible agents/agencies | No Bivens remedy against federal agencies; sovereign immunity bars suit | Bivens claim dismissed: no cause of action for damages against agencies |
| Claims against VA Office of Inspector General | OIG subject to suit on alleged withholding/misconduct | United States has not waived sovereign immunity for these claims | Dismissed for lack of subject matter jurisdiction for failure to show waiver |
| Appointment of counsel | Exceptional circumstances justify appointment of pro bono counsel | No exceptional circumstances shown | Denial affirmed; no abuse of discretion |
Key Cases Cited
- Lane v. Dep’t of Interior, 523 F.3d 1128 (9th Cir.) (FOIA and Privacy Act summary judgment and search adequacy standards)
- Cameranesi v. U.S. Dep’t of Def., 856 F.3d 626 (9th Cir.) (analysis and balancing for FOIA exemption 6 privacy interests)
- Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759 (9th Cir.) (requirements for demonstrating adequacy of FOIA search)
- Serra v. Lappin, 600 F.3d 1191 (9th Cir.) (standards for dismissal for failure to state a claim and jurisdictional issues)
- Resnick v. Hayes, 213 F.3d 443 (9th Cir.) (dismissal standard under 28 U.S.C. § 1915A)
- Nesovic v. United States, 71 F.3d 776 (9th Cir.) (use of § 2401(a) six-year catchall limitations when statute is silent)
- FDIC v. Meyer, 510 U.S. 471 (U.S.) (no Bivens cause of action for damages against federal agencies)
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (U.S.) (establishing Bivens damages remedy against federal officers)
- Arnsberg v. United States, 757 F.2d 971 (9th Cir.) (Bivens claims rejected against the federal government and agencies)
- Hercules, Inc. v. United States, 516 U.S. 417 (U.S.) (sovereign immunity and limits of waiver to sue the United States)
- Heckler v. Chaney, 470 U.S. 821 (U.S.) (agency prosecutorial/enforcement discretion generally not judicially reviewable)
- Palmer v. Valdez, 560 F.3d 965 (9th Cir.) (standard for appointment of counsel; need for exceptional circumstances)