Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1985)

MEMORANDUM^** 

Jeffrey A. Dickstein appeals pro se dismissal of his action under the Freedom of Information Act (FOIA) for failure to state a claim. He contends that the IRS improperly denied his FOIA request for records of tax assessments; that his cause of action is not moot because the documents received from the IRS under IRC Sec. 6203 were inadequate and failed to satisfy his FOIA request. Dickstein claims additionally that because he "substantially prevailed" on his FOIA claim, his cause should be remanded to the district court for a determination of attorneys fees and costs, and for reconsideration of his motion for sanctions against the IRS. We affirm.

FACTS

On April 25, 1985, Jeffrey A. and Stancia Y. Dickstein sent separate identical requests for copies of their 1982 through 1985 tax assessments to the District Director, Internal Revenue Service, Anchorage, Alaska (District Director). They stated their requests were under the FOIA and asked for copies of tax assessments made under Internal Revenue Code Secs. 6203 and 6303.

On May 14 and 15, 1985, the District Director responded to the Dicksteins' requests, stating that because the requested assessment information was available under IRC Sec. 6203, the IRS would not process such requests under the FOIA and that the Dicksteins should address their requests to the Ogden Service Center.

The Dicksteins wrote to the IRS Commissioner in Washington D.C. appealing the District Director's denial of their FOIA requests. The IRS Disclosure Litigation Division informed the Dicksteins that the District Director's responses were not denials of their FOIA requests and could not be appealed; their assessment requests were forwarded to the Ogden Service Center. The Ogden Service Center advised the Dicksteins that their requests had been forwarded to the area responsible for processing assessment requests under IRC Sec. 6203.

On October 24, 1985, the Dicksteins filed this action in district court against the IRS seeking declaratory and injunctive relief and damages. The first cause of action alleged the improper denial of their FOIA requests for tax assessments.

On December 6, 1985, the IRS forwarded to the Dicksteins a record of their tax assessments for 1982 and 1983. Additionally the Dicksteins received summaries of all assessments made by the Ogden Service Center for the period in question. The IRS informed the Dicksteins that a record of assessments for 1984 and 1985 could not be determined until the Dicksteins filed income tax returns and any subsequent examinations of those tax years were made.

The IRS then moved to dismiss the Dicksteins' FOIA claim on the ground that the requests for assessments were not within the scope of the FOIA and that the claims became moot when the Dicksteins received the records of their assessments from the IRS.

The district court dismissed the Dicksteins' FOIA claim for failure to state a claim upon which relief could be granted. It subsequently dismissed the remaining claims and this timely appeal followed.

Stancia Y. Dickstein has filed a motion to dismiss the entire appeal as to her. The appeal as to her is therefore dismissed.

Jeffrey A. Dickstein confines his appeal to a consideration of his FOIA related claims only. We discuss therefore the dismissal of the FOIA claim and entitlement to attorney fees.

Mootness under FOIA

Dickstein contends that his FOIA claim is not moot because the documents he received did not satisfy his request: (1) the records of assessment for 1982 and 1983 were inadequate and (2) the IRS failed to send any assessment records for 1984 and 1985 or provide a clear statement that assessments for those years do not exist. His contention lacks merit.

An action to compel the production of documents under the FOIA is mooted when the agency in control of the requested documents delivers them to the plaintiff. See Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986). Because the IRS provided Dickstein with all of the information requested that was within the agency's possession, the district court did not err in dismissing Dickstein's FOIA claim.

Dickstein next contends that the IRS's failure to send him 1984 and 1985 tax assessments was an inadequate response to his FOIA request. The IRS notified Dickstein that a record of assessments could not be determined until Dickstein filed income tax returns and no records of tax assessments existed for those years. This notice sufficiently satisfied Dickstein's FOIA request. See Stang v. IRS, 788 F.2d 564, 565 (9th Cir. 1986). The FOIA does not require an agency to create documents not already in existence in order to satisfy a citizen's request. See Kissinger v. Reporters' Committee for Freedom of the Press, 445 U.S. 136 (1979); NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). The IRS having responded by sending all the requested documents in its possession, the district court did not err in dismissing the FOIA cause of action. The claim had become moot.Attorneys Fees and Costs

Dickstein who brought this action as a pro se attorney contends that this court should remand for a determination and award of attorney fees and costs because he substantially prevailed on his FOIA claim. The contention fails. The facts of this case establishes no withholding of information by the IRS necessitating the filing of this action for disclosure of the information sought. In light of our affirmance of the dismissal of the claim there is no basis for plaintiff's contention that he has substantially prevailed. Further, it is well-settled that a pro-se litigant cannot be compensated under a federal statute providing for attorney fees. Carter v. Veterans Admin., 780 F.2d 1479 (9th Cir. 1986); Hanson v. Security National Bank, 537 F.2d 327 (9th Cir. 1967).

AFFIRMED.