Michael S. Lovett, Plaintiff-appellant, v. Ralph Deangelos, Defendant-appellee, 39 F.3d 1187 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 39 F.3d 1187 (9th Cir. 1994)

Submitted Nov. 1, 1994. *Nov. 8, 1994


Before: WRIGHT, BEEZER and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

The district court dismissed Michael Lovett's mandamus action for lack of subject matter jurisdiction. He appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Lovett brought this action in the nature of mandamus under 28 U.S.C. § 1361 against Social Security Administration employee DeAngelos. He asked the court to compel DeAngelos to comply with the requests for documents he made under the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The district court characterized his suit as a FOIA action. The district court dismissed his complaint under Fed. R. Civ. P. 12(b) (1) because the FOIA confers jurisdiction against agencies, but not named agency employees. See 5 U.S.C. § 552(a) (4) (B); Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987) (district court properly dismissed FOIA action against government employees).

We review de novo a dismissal for lack of jurisdiction. Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1994). We may affirm on any ground fairly supported by the record. United States v. Telink, Inc., 910 F.2d 598, 600 n. 1 (9th Cir. 1990). Lovett insists that he brought his action under the mandamus statute, 28 U.S.C. § 1361, and not the FOIA. We agree. But mandamus relief is available only when no other adequate remedy exists. Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986). And Lovett could have pursued the remedies available under the FOIA.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4. The panel also denies Lovett's motion to supplement the record

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3