Summary
concluding that sole proprietor of website providing information for job seekers was not entitled to ongoing daily disclosure of all federal job vacancy announcements based on a single FOIA request
Summary of this case from James v. United States Secret Serv.Opinion
No. CIV-07-1831-PHX-RCB.
January 12, 2009
ORDER
Four motions are currently pending before the court: (1) plaintiff pro se Daniel Saul Coven's motion for partial summary judgment (doc. 13); (2) plaintiff's motion to compel discovery (doc. 23); (3) plaintiff's motion for a preliminary injunction (doc. 31); and (4) plaintiff's motion for a stay (doc. 53). All four of these motions are readily disposable — the first two because they have been withdrawn; the third because plaintiff has not met his burden of proof and the fourth because it is unopposed.
I. Withdrawn Motions
As just noted, plaintiff filed a motion for partial summary judgment and a motion to compel discovery. In replying to each of those motions, however, plaintiff expressly withdrew them. As to the motion for partial summary judgment, plaintiff sought "withdrawal . . . without prejudice." Reply (doc. 47) at 1. As to the motion to compel, in his Reply, plaintiff simply "withdr[e]w th[at] motion." Reply (doc. 48) at 1. In light of these withdrawals, the court DENIES as moot plaintiff's motions for partial summary judgment and to compel discovery.
II. Preliminary Injunction Motion
On June 5, 2008, the court stayed the present action pending notification from the defendant, the United States Office of Personnel Management ("OPM"), as to "whether or not plaintiff has exhausted his administrative remedies." Doc. 24 at 1:22-23. The court granted OPM 90 days in which to provide such notification.
While that stay was still in effect, plaintiff filed a motion for a preliminary injunction (doc. 31), seeking to compel OPM's compliance with a January 3, 2008, FOIA request. OPM's response is two-fold. First, denial is mandated because plaintiff is "seeking to compel compliance with a FOIA request that is not the subject of this litigation." Resp. (doc. 32) at 1 (emphasis added). More specifically, the FOIA request which is the subject of this action, as specified in plaintiff's complaint filed on September 25, 2007, is for "electronic files that detail the current employment announcement of vacancies as listed on [OPM's] usajobs.gov and studentjobs.gov websites." Co. (doc. 1) at 3:20-22. As just noted, however, the preliminary injunction pertains to a FOIA request made after the commencement of this action. Further, it differs from the FOIA request which is the subject of this action in that it seeks "copies of the data feed that are being provided to the Google Base service[,]" not the electronic files just described. Mot. (doc. 31) at 213-14. Second, OPM asserts that the court should deny plaintiff's motion for a preliminary injunction "without prejudice pending the resolution of the stay[]" because this motion violates the court's earlier stay order. Resp. (doc. 32) at 2:9.
On September 9, 2009, OPM timely notified the court and plaintiff of its "belie[f] [that] Plaintiff ha[d] exhausted his administrative remedies sufficiently to proceed with briefing the remaining issues in this case." See Status Rep. (doc. 36) at 1. This notification lifted the court's prior stay order, and correspondingly renders moot OPM's argument that plaintiff's preliminary injunction motion should be denied because it violates that order.
Nonetheless, the court finds that plaintiff is not entitled to a preliminary injunction. In the first place, as set forth above, he is seeking an injunction for a FOIA request which is not the subject of this litigation. Moreover, in order to obtain a preliminary injunction in the Ninth Circuit the "moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions going to the merits are raised, and the balance of hardships tips sharply in favor of the moving party." Mattel, Inc. v. Greiner and Hausser GmbH, 354 F.3d 857, 869 (9th Cir. 2003) (citation omitted). Plaintiff did not identify upon which standard he is basing his motion, must less explain how he has met that standard. For both of these reasons, the court DENIES plaintiff's motion for a preliminary injunction (doc. 31).
III. Stay Motion
On October 2, 2008, OPM filed a motion for summary judgment (doc. 38). Plaintiff responded and cross-moved for summary judgment (doc. 44). Two days after OPM filed its response to that cross-motion, on December 17, 2008, plaintiff filed a motion to stay (doc. 53). He seeks a stay "to request another administrative review by OPM's General Counsel on the matter of FOIA processing fees." Mot. (doc. 53) at 1. In addition, plaintiff is seeking an extension of time in which to file his reply in connection with his cross-motion for summary judgment. In particular, plaintiff requests that he have "until 30 days after [OPM's] General Counsel responds and serves their response on the administrative review[]" in which to file and serve his reply. Id. at 3:708.
On January 5, 2009, OPM filed a "Response (Non-Opposition) to Motion to Stay[.]" Doc. 54 at 1. OPM "does not oppose [this] [m]otion to [s]tay . . . including extending [plaintiff's] Reply to OPM's Response to Plaintiff's Cross-Motion for Summary Judgment until 30 days after the Office of General Counsel decides his appeal regarding the fee estimate." Id. Primarily because OPM does not oppose this stay, but also because a stay would be in the interests of justice, the court hereby GRANTS plaintiff's motion for a stay (doc. 53), including his request for an extension of time in which to file his reply, as specified above.
In light of the foregoing, IT IS ORDERED that:
(1) plaintiff's motion for partial summary judgment (doc. 13) is DENIED without prejudice;
(2) plaintiff's motion to compel discovery (doc. 23) is DENIED;
(3) plaintiff's motion for a preliminary injunction (doc. 31) is DENIED; and
(4) plaintiff's motion for a stay (doc. 53) is GRANTED including extending plaintiff's time to file and serve his reply to OPM's response to his cross-motion for summary judgment until 30 days after the OPM's Office of General Counsel decides plaintiff's appeal regarding the fee estimate.