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Court Decisions

Court of Appeals Decisions

Earle v. Holder, No. 11-5280, 2012 WL 1450574 (D.C. Cir. Apr.20, 2012) (per curiam). Holding: Affirming orders of the district court which dismissed individually-named District of Columbia employee-defendants, and dismissed claims against federal defendants based on plaintiff's failure to state a FOIA claim where he did not allege an improper withholding of agency records. The D.C. Circuit affirms the district court's decision to dismiss federal defendants, concluding that "the district court properly determined that appellant failed to state a claim under FOIA because he did not allege that agency records were withheld."

District Court Decisions

Kelly v. Judge Advocate General of the Navy, No. 12-3067-SAC, 2012 WL 6611009 (D. Kan. Dec. 18, 2012) (Crow, J.). Holding: Dismissing action without prejudice for lack of jurisdiction. The court dismisses this action without prejudice. The court notes that "the only named defendant in this case even associated with a federal agency was the "Judge Advocate General of the Navy." Accordingly, "the court dismisses this action against all defendants that are not a federal agency pursuant to 28 U.S.C. §1915(e)(2) for failure to state a claim." In addition, the court notes that plaintiff has not established that the court has jurisdiction over his FOIA claim. "Plaintiff does not allege that he is a Kansas resident. He is not a resident of Kansas simply by virtue of his confinement in this state. Nor does he allege any facts indicating that the agency records he seeks are situated in Kansas."

Sierra Club v. Tenn. Valley Auth., No. 12-1852, 2012 WL 5974034 (D.D.C. Nov. 29, 2012) (Lamberth, C.J.). Holding: Denying plaintiff's motion for a preliminary judgment because the court lacks personal jurisdiction over the defendant and transferring the case to the Eastern District of Tennessee. The court "concludes that [5 U.S.C.] § 552(a)(4)(B) does not allow the Sierra Club to pursue their FOIA claim against the TVA [Tennessee Valley Authority] in this Court." In its analysis, the court determines that the "plain meaning fails to resolve the issue" of whether the term "jurisdiction" is intended to give "this Court personal jurisdiction over TVA." The court notes that "Congress could have used the term 'jurisdiction' to refer to" subject matter jurisdiction only, personal jurisdiction only, or a combination of the two. The court next turns to the legislative history of § 552(a)(4)(B). The court rejects plaintiff's argument that because the subsection "was enacted at the same time as a provision clarifying that FOIA applied to 'Government corporations [and] Government controlled corporations,'… Congress must have intended that § 552(a)(4)(B) would provide personal jurisdiction over TVA." "Simultaneous enactment, without more, does not imply that Congress intended the TVA to be subject to personal jurisdiction in D.C." Additionally, allowing FOIA plaintiffs to bring suit in D.C. District Court was based on recognition of that "court's substantial expertise on FOIA matters as well as to promote convenience for the D.C.-based Department of Justice attorneys." The court explains that these reasons lose their force when TVA is a defendant because TVA is not represented by DOJ in FOIA matters and has its own attorneys who are based in Tennessee.

The court also declines to assert personal jurisdiction over the defendant based on TVA's contacts and presence in the forum. First, "the Sierra Club's FOIA claims… do not arise out of any business transacted between the parties in the District," therefore specific jurisdiction is unavailable. General jurisdiction is also unavailable because "D.C. Courts have long carved out a 'government contacts' exception for alien corporations which keep an office in the District for the purpose of maintaining contact with Congress and governmental agencies." Because TVA's D.C. office "obtains information concerning matters affecting TVA, circulates information about TVA to Federal Government officials and the public, and arranges meetings between TVA officers and officials of other Federal Government agencies,…[t]his office fits squarely into the government contacts exception, and prevents this Court from finding personal jurisdiction." The court concludes that transfer to the Eastern District of Tennessee is appropriate because of the location of "TVA's Freedom of Information Officer… and... personnel whose work involves environmental compliance and installation of pollution controls."

Walsh v. FBI, No. 11-2214, 2012 WL 5873671 (D.D.C. Nov. 21, 2012) (Roberts, J.). Holding: Granting the VA's and ODNI's motions for summary judgment; dismissing claims against the Foreign Intelligence Surveillance Court (FISC) because it is not subject to the FOIA; denying FBI's motion for summary judgment. The court dismisses the requester's claims against FISC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. "[T]he FISC, as a federal court, is not subject to the FOIA."

Hildenbrand v. Fahey, No. 3:12-CV-2959-D, 2012 WL 5844185 (N.D. Tex. Nov. 16, 2012) (Fitzwater, J.). Holding: Granting DOJ's motion for summary judgment and granting motion to dismiss filed by two Assistant United States Attorneys named as parties in the litigation.The court rejects DOJ's argument "that the court does not have subject matter jurisdiction over the claims against it because it did not improperly withhold agency records." The court notes that "the jurisdictional attack … is inextricably intertwined with the merits of [plaintiff's] FOIA action, because in order to decide both mootness and the merits of [plaintiff's] FOIA action, the Court must decide whether DOJ improperly withheld agency records under section 552(a)(4)(b)." Having determined that it has subject matter jurisdiction, the court analyzes whether DOJ has met the requirements for summary judgment.

Zander v. DOJ, No. 10-2000, 2012 WL 5353516 (D.D.C. Oct. 31, 2012) (Bates, J.). Holding: Defendants' motion for reconsideration is granted in part to the extent it seeks an indicative ruling pursuant to FRCP 62.1(a)(3); Defendants' motion for reconsideration is held in abeyance because the court lacks authority to grant further relief unless the court of appeals remands the case. "The Court does not have jurisdiction to provide defendants relief at this time. A day after filing their motion for reconsideration, defendants filed a notice of appeal, which 'confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.'" However, "this opinion shall indicate how the Court would rule if the case were remanded by the D.C. Circuit" because the Federal Rules of Civil Procedure allow the court to make such a statement.

Sorodsky v. U.S. Attorney, No. 12-cv-4420, 2012 WL 4891697 (E.D.N.Y. Oct. 11, 2012) (Ross, J.). Holding: Dismissing plaintiffs' complaint filed in forma pauperis pursuant to 28 U.S.C. §§1915A(b) and 1915(e)(2)(B) for failure to state a claim and for lack of subject matter jurisdiction under Fed. R. Civ. 12(h)(3). The court dismisses plaintiffs' complaint for failure to state a claim and for lack of subject matter jurisdiction. The court holds that "plaintiffs have not alleged that they made a FOIA request" and "'[t]he FOIA provides a cause of action only to a requester who has filed a FOIA request that has been denied.'"

Marino v. CIA, No. 11-813, 2012 U.S. Dist. LEXIS 139661 (D.D.C. Sept. 28, 2012) (Collyer, J.). Holding: Dismissing plaintiff's complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure. The court finds that there is no basis for plaintiff's account of the implantation of devices and dismisses his complaint. The court notes that "'Federal courts are without power to entertain claims otherwise within their jurisdiction if they are 'so attenuated and unsubstantial as to be absolutely devoid of merit''"

Degenes v. FBI, No. 11-916, 2012 U.S. Dist. Lexis 139307 (W.D. Pa. Sept. 27, 2012) (Conti, J.). Holding: Dismissing the complaint for lack of subject-matter jurisdiction. Exhaustion of Administrative Remedies: The court dismisses the complaint for lack of subject-matter jurisdiction, concluding "[p]laintiff's failure to exhaust the administrative remedies provided by the FOIA precludes this court from exercising jurisdiction in this case." "The FOIA is clearly an instance where Congress has intended to impose an exhaustion requirement not subject to the discretion of the courts."

Improper Withholding: The court concludes that "[t]he search for responsive records through multiple databases using several variations of the plaintiff's name constituted a reasonable search." Because no responsive documents were located, "no documents were improperly withheld, and the judicial remedy is not properly invoked."

Wells v. VA, No. 11-9-BAJ-SCR, 2012 U.S. Dist. LEXIS 131707 (M.D. La. Sept. 14, 2012) (Jackson, J.). Holding: Granting defendant's Rule 12(b)(6) motion to dismiss. The court dismisses plaintiff's suit because "[p]laintiff has neither alleged nor demonstrated that he has made a request to the VA for reasonably described records; nor that he has appealed a denial of such a request to the VA Office of the General Counsel. It is well established that a claimant must exhaust his administrative remedies prior to requesting judicial relief under the FOIA."

Guidetti v. NFN Donahue, No. 6-11-1249-HMH-KFM, 2012 U.S. Dist. LEXIS 130368, (D.S.C. Sept. 13, 2012) (Herlong, J.). Holding: Denying plaintiff's motion requesting information under the FOIA. The court denies plaintiff's motion to request information from three judges. The court notes that "federal courts are not subject to the FOIA."

Brooks v. Legis. Bill Room, No. 10-379, 2012 U.S. Dist. LEXIS 74726 (E.D. Cal. May25, 2012) (Newman,Mag.). Holding: Dismissing plaintiff's FOIA claim for lack of subject matter jurisdiction where his complaint alleges that he submitted a request to a California state entity inasmuch as FOIA "does not apply to state agencies."

Stuler v. IRS, No. 12-391, 2012 U.S. Dist. LEXIS 72782 (W.D. Pa. May24, 2012) (Schwab,J.). Holding: Granting, with prejudice, defendant's motion to dismiss on the basis that the court lacks subject matter jurisdiction to hear the case where the IRS has provided plaintiff with all records covered by his request.

Marjenhoff v. Parsley, No. 12-252, 2012 U.S. Dist. LEXIS 66950 (S.D. In. May14, 2012) (Magnus-Stinson,J.). Holding: Advising plaintiff that FOIA confers jurisdiction on district courts to review the actions of federal, not state, agencies with respect to FOIA requests, and granting plaintiff additional time to supplement his complaint by setting forth a basis for the exercise of jurisdiction over his claim.

Carroll v. SSA, No. 11-3005, 2012 WL 1454858 (D.Md.Apr.24, 2012) (Quarles, J.). Holding: Dismissing plaintiff's complaint for failure to state a claim. The court dismisses plaintiff's compliant, where he only alleged that he sent requests seeking the release of documents to SSA and "'sent them many more letters,' but never received a response compliant with FOIA." The court determines that "[a]bsent a description of the documents sought, as well as details of the refusal to turn over the requested information, it is impossible to determine if [plaintiff] has stated a viable claim." Additionally, the court finds that "[i]t is also impossible for the agencies he has sued to determine when or if his requests were ever received and, if so, whether a search was performed and an answer provided."

Mobley v. DOJ, No. 11-1437, 2012 WL 604153 (D.D.C. Feb. 27, 2012) (Howell, J.). Holding: Denying defendant's motion to dismiss, and concluding that plaintiff has proffered allegations sufficient to support his FOIA claim; and finding that an agency is not required to provide a listing of withheld records at the administrative stage of a FOIA request. The court denies defendant's motion to dismiss, which was based on the ground that plaintiff failed to allege that defendant improperly withheld documents and "therefore 'fails to state a legally-valid claim under FOIA or any other provisions of law.'" The court instead finds that "the Complaint does not 'explicitly disavow' that the defendant improperly withheld documents, but rather sets forth general allegations sufficient to maintain a cognizable FOIA claim." Although "plaintiff concedes in his opposition to the defendant's motion to dismiss that 'it is very likely that the records are properly classified and accordingly exempt under FOIA exemption (b)(1),... [the court finds that] this frank assessment of his own case does not negate the fact that plaintiff initiated the instant lawsuit because he suspects that the defendant improperly withheld documents, and states in his Complaint that he intends to contest withholdings that he deems to be improper."

Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 424852 (N.D. Cal. Feb.9, 2012) (Ryu, Mag.). Holding: Granting defendant's motion to dismiss the complaint, and granting plaintiff leave to file an amended complaint. The court "denies DHS's motion to dismiss for lack of subject matter jurisdiction under § 552," which was based on defendant's assertion that plaintiff does not reside or have a principle place of business in this judicial district and the "vast majority of the A-files" requested are not situated in this district. The court interprets §552(a)(4)(B) "as a restriction on venue rather than subject matter jurisdiction." The court also notes that it "need not address whether the Northern District of California is a proper venue for Plaintiff's claim, because DHS has waived any objection to venue by not raising it in its answer or the current motion."

United States v. Franco-Flores, No. 06-144, 2011 WL 6396554 (D. Nev. Dec. 20, 2011) (Hicks, J.). Holding: Denying plaintiff's request for disclosure of records and transcripts. The court denies plaintiff's request for records and transcripts, finding that "[t]he Freedom of Information Act is inapplicable here, however, as the courts of the United States are not an 'agency' subject to the Act."

Cannon v. Cooch, No. 10-274, 2011 WL 5925329 (D. Del. Nov.28, 2011) (Sleet, J.). Holding: Dismissing plaintiff's FOIA claim for failure to state a claim upon which relief may be granted. The court holds that "[c]learly, the Superior Court of Delaware is not a federal executive branch agency" and "[t]hus, any order given by [a state] Judge . . . to the police officers regarding [plaintiff's] removal from the law library does not come within the purview of the Federal FOIA."

Bond v. L.A. Cnty.Assessors Office, No. 10-08739, 2011 U.S. Dist. LEXIS 119138 (C.D. Cal. Oct. 14, 2011) (Klausner, J.). Holding: Ordering plaintiff to show cause as to why his FOIA action brought against a local government entity should not be dismissed for lack of subject matter jurisdiction.

Earle v. Holder, No. 10-0422, 2011 WL 4526039 (D.D.C. Sept. 30, 2011) (Friedman,J.). Holding: Granting defendant's motion to dismiss FOIA claims based on lack of subject matter jurisdiction. The court dismisses plaintiff's FOIA claims on the basis that he has failed to establish jurisdiction because he "has not alleged that he requested the disclosure of records and was denied." Rather, the court observes that "[plaintiff] challenges the accuracy of the agency records, which is the exclusive province of the Privacy Act."

Evans v. FBI, No. 10-1232 (W.D. Mo. July 19, 2011) (Wright,J.). Holding: Granting the FBI's motion for summary judgment based on the adequacy of its search; dismissing plaintiff's non-FOIA claims against the FBI; denying DHS's motion to dismiss and recommending that issues be reframed and presented to court as a motion for summary judgment. "Because the Court's jurisdiction under the FOIA extends only to claims arising from the improper withholding of agency records, . . . plaintiff's remaining requests or allegations (i.e., his cease and desist request and his request that the Court order the agencies to cease monitoring him) are not cognizable under the FOIA" and are dismissed.

Waters v. Jackson, No. 08-2898, 2011 U.S. Dist. LEXIS 72826 (D.S.C. July 6, 2011) (Anderson, J.). Holding: Denying plaintiff's request for copies. The court holds that "[f]ederal courts are not subject to the federal Freedom of Information Act."

Venkataram v. Office of Info.Policy, No. 09-6520, 2011 WL 2038735 (D.N.J. May 25, 2011) (Simandle, J.). Holding: Granting defendants' motion for summary judgment with respect to an individual government employee named in the complaint as well as for any unexhausted FOIA requests; and ordering defendants to show cause as to why the matter should not be remanded to the agency to process plaintiff's request. The court grants defendants' motion for summary judgment "with respect to Plaintiff's Complaint to the extent it seeks review of the propriety of unexhausted FOIA requests." The court concludes that its "jurisdiction is limited to circumstances in which an agency has withheld requested information" and, accordingly, finds that "[t]o the extent Plaintiff now seeks documents beyond those sought in his exhausted FOIA requests . . . he must first file the proper request with the agency."

Espino v. DOJ, No. 11-0909, 2011 WL 1841918 (D.D.C. May 16, 2011) (Huvelle, J.). Holding: Granting pro se prisoner's application to proceed in forma pauperis; and dismissing the case because complaint fails to meet the minimal pleading requirements of Federal Rule of Civil Procedure 8(a). The court dismisses plaintiff's complaint because it fails to meet the requirements of Federal Rule of Civil Procedure 8(a) which necessitate "'(1) a short and plain statement of the grounds for the court's jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Here, "[t]he instant complaint neither references a FOIA request number nor contains any other information, e.g, a copy of the actual request allegedly submitted to DOJ, from which a FOIA request may be reasonably identified." Accordingly, the court holds that the complaint "fails to provide adequate notice of a claim and grounds for federal court jurisdiction."

Creed v. NTSB, No. 10-01630, 2010 WL 5174359 (D.D.C. Dec. 18, 2010) (Kennedy, J.). The district court concludes that it lacks jurisdiction to entertain plaintiff's claims because Section 1153(a) of the Independent Safety Board Act ("chapter 11") vests exclusive jurisdiction over final orders of the NTSB with the D.C. Circuit. The court finds that "despite [plaintiff's] assertions to the contrary, [his] claims challenging the NTSB decisions to disclose his information are direct challenges to the manner in which the NTSB discharges its statutory duties under [chapter 11]" and "[t]he fact that [his] complaint presents causes of action based on the APA and the Privacy Act rather than chapter 11 itself does not alter this conclusion." Accordingly, the court transfers the case to the D.C. Circuit.

Davis v. City of Dearborn, No. 09-14892, 2010 WL 5282015 (E.D. Mich. Dec. 17, 2010) (Battani, J.). The court finds that plaintiff's federal FOIA claim "fails as a matter of law" "[b]ecause the federal Freedom of Information Act . . . applies only to federal agencies."

Am. Small Bus.League v. SBA, No. 10-1459, 2010 WL 3987280 (N.D. Cal. Oct. 12, 2010) (Armstrong, J.). The court denies defendant's motion to dismiss, which was premised upon the SBA's position that "it ha[d] produced all responsive records, and, as such, it ha[d] not 'improperly withheld agency records.'" Instead, the court concludes that it has jurisdiction to entertain the complaint under the FOIA because although the plaintiff does not dispute the adequacy of SBA's search, it "challenges the redactions" made by the SBA to the two contracts that it produced.

Eldridge v. Hall, No. 10-1597, 2010 U.S. Dist. LEXIS 98855 (D.D.C. Sept. 19, 2010) (Sullivan, J.). "Because there is no indication from the complaint that plaintiff properly submitted a FOIA request to an agency, this Court lacks jurisdiction to entertain such a claim."

Watanmaker v. Clark, No. 09-3877, 2010 U.S. Dist. LEXIS 89958 (E.D.N.Y. Aug. 31, 2010) (Bianco, J.). The court dismisses plaintiff's FOIA claim because "the FOIA requests submitted by plaintiff were all served on state agencies," not federal agencies, and, "[t]herefore, FOIA does not apply."

Sanders v. Obama, No. 09-912, 2010 WL 3001514 (D.D.C. Aug. 2, 2010) (Collyer, J.). The court declines to entertain plaintiff's arguments disputing the authenticity of certain documents or inquiring into the existence of probable cause in his criminal case. "This Court's jurisdiction is limited to the FOIA request and, thus, falls short of these collateral concerns and requests made by [plaintiff.]"

Exxon Mobil Corp. v. U.S. Dep't of Interior, No. 09-6732, 2010 WL 2653353 (E.D. La. June 29, 2010) (McNamara, J.). "[T]o the extent that [plaintiff] seeks documents which are located outside the Eastern District of Louisiana (e.g. documents maintained by at the MMS Office of Congressional Affairs [located in Virginia]), the court lacks subject matter jurisdiction."

Surgick v. Cirella, No. 09-3807, 2010 U.S. Dist. LEXIS 59454 (D.N.J. June 15, 2010) (Hillman, J.). The court dismisses without prejudice plaintiffs' claim that the IRS and other private defendants "violated their First Amendment rights to freedom of information and federal statutory law, specifically 26 U.S.C. § 6103(e)(3) and 'IRS Code 1729' and the Privacy Act." The court finds that "Section 6103 does not provide an independent, legally cognizable means to challenge the IRS's non-disclosure of tax information and that a person requesting such information and seeking enforcement must abide by the mechanisms prescribed by FOIA." The court further holds that because the "plaintiffs are acting pro se and have since [initiating the action] attempted to comply with FOIA," they may "amend and resubmit their complaint with regard to any claims they may have against the IRS under FOIA." Additionally, plaintiff's claim" under the Privacy Act or the FOIA against . . . a private corporation, fails as a matter of law."

Smith v. Delaney, No. 10-0919, 2010 WL 2266359 (D.D.C. June 4, 2010) (Huvelle, J.). The court dismisses plaintiff's complaint because it's "mandamus powers extend only to 'officer[s] and employee[s] of the United States" and, additionally, "the Superior Court is not subject to the federal FOIA, which applies only to executive-branch agencies of the United States."

Ruston v. BOP, No. 10-0917, 2010 WL 2266065 (D.D.C. June 3, 2010) (Huvelle, J.). The court dismisses plaintiff's complaint where he failed to demonstrate that he had submitted a "Certification of Identity" in connection with his first party request. "Because plaintiff failed to submit a proper FOIA request, no improper withholding has occurred regarding the subject request."

Lazaridis v. DOJ, No. 09-1177, 2010 WL 2093405 (D.D.C. May 26, 2010) (Collyer, J.). Plaintiff lacks standing to bring a claim on behalf of his daughter because he is not an attorney or her duly appointed representative. Thus, the court lacks jurisdiction over the claims regarding plaintiff's daughter.

New York v. Salazar, No. 08-CV-0644, 2010 WL 1268018 (N.D.N.Y. Apr. 1, 2010) (Peebles, Mag. J.). The court finds that it lacks jurisdiction to issue a ruling on plaintiffs' motion to compel production of documents pursuant to the FOIA, as it was not empowered to rule on the merits of plaintiffs' FOIA claims.

McKevitt v. Mueller, No. 09-3744, 2010 WL 532508 (S.D.N.Y. Feb. 16, 2010) (Koeltl, J.). "This case does not arise under the FOIA and thus there is no jurisdiction under the FOIA, because the FOIA administrative process was never used. The plaintiff never filed a FOIA request under the DOJ's procedures for such requests. . . . The plaintiff did not make a FOIA request, have it denied, and then appeal in the DOJ. Rather, he sought evidence under the Hague Evidence Convention. The Government declined to produce documents under the rationale of FOIA exemptions, but the Government's response was not a response to a FOIA request because no such FOIA request was ever made." Additionally, "the plaintiff's argument that the DOJ failed to respond timely is unavailing. The plaintiff did not file a FOIA request, and therefore the FOIA's time for response provision was never triggered." Furthermore, "[t]he defendants are plainly correct that even if the plaintiff had standing, there has not yet been administrative exhaustion and the plaintiff cannot sue at this time."

Griffin v. S.C. Dep't of Prob., No. 09-2136, 2009 WL 4016118 (D.S.C. Nov. 19, 2009) (Duffy, J.) (adoption of magistrate's report and recommendation). The complaint is dismissed because a claim for violation of a state law "should be heard in state court." Moreover, no federal agency is named in this suit.

Carson v. U.S. Office of Special Counsel, No. 08-317, 2009 WL 1616763 (E.D. Tenn. June 9, 2009) (Phillips, J.). The court lacks authority under the FOIA to order defendant to create new documents that plaintiff believes defendant was required to create.

Courts of Special Jurisdiction Decisions

Dourlain v. United States, No. 10-768, 2011 WL 2444787 (Fed. Cl. June 16, 2011) (Williams,J.). Holding: Dismissing plaintiff's FOIA claim based on lack of jurisdiction. The court dismisses plaintiff's FOIA claim, finding that "to the extent Plaintiff alleges a violation of FOIA, it is well settled that this Court lacks jurisdiction to hear this claim."

Anstine v. United States, No. 10-138C, 2010 WL 5256459 (Fed. Cl. Dec. 16, 2010) (Firestone, J.). The court dismisses plaintiff's FOIA claims, concluding that "[b]ecause FOIA does not mandate money damages, FOIA claims are not within the subject matter jurisdiction of this court."

Treece v. United States, No. 10-380, 2010 WL 4780807 (Fed. Cl. Nov. 23, 2010) (Hewitt, J.). The court dismisses plaintiff's FOIA claims "because the federal district courts have exclusive jurisdiction over such matters."

Leitner v. United States, No. 09-471, 2010 WL 1634054 (Fed. Cl. Apr. 16, 2010) (Smith, J.). The United States Court of Federal Claims does not have jurisdiction over FOIA claims.

Dobyns v. United States, No. 08-700, 2010 WL 391510 (Fed.Cl. Feb. 1, 2010)
(Allegra, J.). The FOIA confers jurisdiction in FOIA suits upon federal district courts, and not the Court of Federal Claims.

Mangham v. Shinseki, No. 07-1338, 2009 WL 3806327 (Vet. App. Nov. 16, 2009) (Lance, J.). The United States Court of Appeals for Veterans Claims does not have jurisdiction to hear plaintiff's appeal of the VA's decision to withhold a record under the FOIA.