Opinion
No. 06-5130.
Filed On: February 27, 2007.
BEFORE: Sentelle, Rogers, and Garland, Circuit Judges.
ORDER
Upon consideration of appellant's brief and appendix; appellee's motion for summary affirmance, the opposition thereto, the reply, and the lodged surreply, it is
ORDERED that the motion for summary affirmance be granted with respect to the district court's rejection of appellant's claims under the Freedom of Information Act ("FOIA") and the Constitution and the court's failure to award him costs and attorney's fees on his FOIA claims. Appellant's conclusory objections to the district court's FOIA ruling do not establish any error in that ruling. See, e.g., Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986). Moreover, non-attorney pro se litigants such as appellant may not recover attorney's fees under FOIA, see Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir. 1993), and appellant is not in any event a prevailing party for purposes of an award of costs and attorney's fees under the statute. See, e.g., Oil, Chemical Atomic Workers Int'l Union v. Department of Energy, 288 F.3d 452, 457 (D.C. Cir. 2002). Finally, the government has not waived sovereign immunity for constitutional tort claims such as appellant's. See, e.g.,Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984); see also Harper v. Williford, 96 F.3d 1526, 1528 (D.C. Cir. 1996) (per curiam). The merits of the parties' positions are so clear as to warrant summary action on these claims. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). It is FURTHER ORDERED, on the court's own motion, that the case be remanded for further proceedings concerning appellant's claims under the Omnibus Crime Control and Safe Streets Act. Although the district court may have rejected appellant's claims under the Act, its grounds for doing so are not clear. See Voinche v. FBI, 412 F. Supp. 2d 60, 70-71, 72 (D.D.C. 2006). Moreover, although appellee now suggests various grounds for rejecting these claims, we leave it to the district court to consider the government's arguments in the first instance.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.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.