Opinion
No. 09-5389.
Filed On: August 9, 2010.
BEFORE: Rogers, Garland, and Kavanaugh, Circuit Judges
ORDER
Upon consideration of the motion for summary reversal, styled as a "petition for writ of mandamus," the motion for leave to file an abbreviated appendix to the motion for summary reversal, and the lodged appendix; the motion for leave to file a corrected affidavit in support of the motion for leave to file an abbreviated appendix and the lodged corrected affidavit; the motion to extend time to file a motion for summary affirmance, the opposition thereto, the lodged motion for summary affirmance, and the lodged opposition thereto; and the motion to enjoin the Secretary of the Army, it is
ORDERED that the motions for leave to file be granted. The Clerk is directed to file the lodged appendix and corrected affidavit. It is
FURTHER ORDERED that the motion to extend time be granted. The Clerk is directed to file the lodged motion for summary affirmance and the lodged opposition. It is
FURTHER ORDERED that the motion to enjoin the Secretary of the Army be denied. It is
FURTHER ORDERED that the motion for summary affirmance be granted and the motion for summary reversal be denied. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). Appellant has not demonstrated that any agency "improperly withheld" a record within its possession at the time appellant made a request under the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552(a)(4)(B); see SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). FOIA "does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980). The district court correctly concluded that the agencies conducted searches reasonably calculated to uncover all relevant documents. See Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). The district court also correctly held that 38 U.S.C. § 511 precluded it from reviewing any decision by the Secretary of Veterans Affairs on a claim for veterans' benefits, see Price v. United States, 228 F.3d 420, 421 (D.C. Cir. 2000), and properly rejected appellant's challenge to the constitutionality of that provision. Finally, because the defendants timely filed a motion to dismiss appellant's complaint, the district court properly denied appellant's motion for default judgment. See also Fed.R.Civ.P. 55(d).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.