Zaldivar v. United States Department of Veterans Affairs, No. 14-01493, 2015 WL 6468207 (D. Ariz. Oct. 27, 2015) (Campbell, J.)

Zaldivar v. United States Department of Veterans Affairs, No. 14-01493, 2015 WL 6468207 (D. Ariz. Oct. 27, 2015) (Campbell, J.)

Re: Request for certain documents contained in plaintiff's veteran compensation file

Disposition: Granting defendants' motion to dismiss; granting defendants' partial motion to dismiss

• Procedural Requirements, Searching for Responsive Records:  "The Court lacks jurisdiction over Plaintiff’s FOIA claim pertaining to his request to OIG for an appeals handbook."  "Agency possession of the requested documents is 'an indispensable prerequisite to liability in a suit under FOIA.'"  "OIG has provided evidence in the form of a sworn declaration that no such handbook exists."
   
• Litigation Considerations, Statute of Limitations:  "The Court . . . will dismiss Plaintiff’s claims regarding the FOIA requests he submitted on October 20, 2002, April 13, 2005 and July 10, 2007, as barred by the statute of limitations."  The court explains that "a FOIA claim accrues either (1) when an agency fails to meet the 20-day deadline after receiving a FOIA request or an appeal from a denial of a FOIA request, or (2) when an agency makes a timely response to an appeal from a timely adverse determination of an initial FOIA request."  The court then calculates that "[p]laintiff was obligated to file . . . lawsuit[s] on [these] claim[s] by November 16, 2008," "April 22, 2011," and "April 1, 2014."  However, "[p]laintiff did not file this lawsuit until July 1, 2014."  The court also rejects "[p]laintiff argu[ment] that the statute of limitations does not preclude his claims because the alleged FOIA violations 'should be considered to be a 'continuing wrong' and a 'continuing violation.''"  The court finds that "the [continuing violation] doctrine [does not apply] to Plaintiff’s three FOIA requests . . . because Plaintiff would know by the expiration of the applicable response date whether he had the documents he sought or not."