Voinche v. CIA

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 15, 1995
• Docket: 95-30352
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-30352 Conference Calendar __________________

WOODY VOINCHE,

Plaintiff-Appellant,

versus

CENTRAL INTELLIGENCE AGENCY,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 93-CV-2203 - - - - - - - - - - (October 17, 1995) Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

Woody Voinche filed a Freedom of Information Act (FOIA)

request with the Central Intelligence Agency (CIA), requesting

CIA reports on the former Soviet Union's ability to alter the

weather. The CIA advised Voinche that, due to a heavy volume of

FOIA requests, it was unable to respond within the 10 working

days stipulated by the FOIA.

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-30352 -2-

Voinche filed suit in the district court challenging the

CIA's failure to respond timely to his request. Pursuant to a

motion by the CIA, the district court granted a six-month stay in

the proceedings. Subsequently, the CIA was granted an extension

of time until March 4, 1995, to respond to Voinche's motion for

release of the records.

On March 7, 1995, the CIA moved to dismiss Voinche's

complaint pursuant to Fed. R. Civ. P. 12(b)(1) based on the fact

that it had completed Voinche's FOIA request on March 3, 1995.

The motion was granted. This court reviews a district court's

dismissal under Rule 12(b)(1) de novo. Musslewhite v. State Bar

of Texas, 32 F.3d 942, 945 (5th Cir. 1994), cert. denied, 115 S.

Ct. 2248 (1995).

"[A] case is moot when the issues presented are no longer

`live' or the parties lack a legally cognizable interest in the

outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). The

CIA's response to Voinche's request rendered moot his challenge

to the tardiness of the CIA's response. See Voinche v. F.B.I.,

999 F.2d 962, 963 (5th Cir. 1993).

Regarding Voinche's argument that the CIA misrepresented the

date on which it released the documents, the CIA's notification

that it would be releasing the documents after Voinche paid the

applicable fee was sufficient to moot Voinche's suit. See

§ 522(a)(6)(A)(i)(timeliness requirement applies to notification

regarding whether the agency will comply, not actual release of

the records). The fact that the CIA did not respond to Voinche's

request until after suit was filed is of no consequence. See No. 95-30352 -3-

Voinche v. U.S. Dept. of Air Force, 983 F.2d 667, 670 (5th Cir.)

(citing Rocky v. King, 900 F.2d 864, 866 (5th Cir. 1990)

("The mootness doctrine requires that the controversy posed by

the plaintiff's complaint be `live' . . . throughout the

litigation.")), cert. denied, 114 S. Ct. 70 (1993).

Regarding Voinche's argument that the district court should

have retained jurisdiction over his case until it was determined

whether the CIA complied with his FOIA request, Voinche's suit

challenged only the timeliness of the CIA's response; therefore,

the issue whether the CIA's response was adequate is not

apposite. See Voinche, 999 F.2d at 963. The judgment of the

district court is AFFIRMED.