American Small Business League v. United States Small Business Administration

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AMERICAN SMALL BUSINESS LEAGUE, 
Plaintiff-Appellant, No. 09-16756
v.
 D.C. No.
3:09-cv-01098-EMC
UNITED STATES SMALL BUSINESS
ADMINISTRATION, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, Magistrate Judge, Presiding

Submitted October 7, 2010*
San Francisco, California

Filed October 15, 2010

Before: David R. Thompson, Barry G. Silverman and
M. Margaret McKeown, Circuit Judges.

Per Curiam Opinion

*The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

17083
 AMERICAN SMALL BUSINESS LEAGUE v. USSBA 17085

COUNSEL

Robert E. Belshaw, Gutierrez & Associates, San Francisco,
California, for the appellant.

Tony West, Assistant Attorney General; Joseph P. Russon-
iello, United States Attorney; Leonard Schaitman, Attorney,
Appellate Staff, Civil Division; Steve Frank, Attorney, Appel-
late Staff, Civil Division, Department of Justice, Washington,
D.C., for the appellee.

OPINION

PER CURIAM:

Plaintiff American Small Business League (“ASBL”)
appeals the adverse summary judgment ruling denying its July
2008 request under the Freedom of Information Act, 5 U.S.C.
§ 552, to compel Defendant United States Small Business
Administration to produce Verizon Wireless cell phone
17086 AMERICAN SMALL BUSINESS LEAGUE v. USSBA
records that the agency no longer possessed. We have juris-
diction pursuant to 28 U.S.C. § 1291. We affirm.

In July 2008, ASBL filed a FOIA request with SBA seek-
ing the telephone records for Michael Stamler, Director of the
Small Business Administration Press Office during the years
2006 and 2007. SBA produced some documents pursuant to
the request, but did not turn over copies of cell phone records
for a government-issued BlackBerry used by Stamler during
those years. Although SBA previously had possessed the
2006 and 2007 records, it did not retain them; Verizon had
exclusive possession of the records. Unhappy with SBA’s
response to its FOIA request, ASBL filed this lawsuit seeking,
inter alia, an order compelling SBA to search for and produce
the requested records.

The district court ultimately granted SBA’s motion for
summary judgment. The court concluded that SBA had no
obligation under FOIA to retrieve the phone records from
Verizon, per United States Department of Justice v. Tax Ana-
lysts, 492 U.S. 136, 148 n.10 (1989), and that the phone
records did not qualify under FOIA’s statutory definition of
records, which covers information “maintained for an agency
by an entity under Government contract, for the purposes of
records management,” 5 U.S.C. § 552(f)(2)(B). Both conclu-
sions are sound.

[1] First, the district court’s finding that SBA did not con-
trol the records at the time of the FOIA request is not clearly
erroneous. See Milner v. U.S. Dep’t of Navy, 575 F.3d 959,
963 (9th Cir. 2009). It is undisputed that SBA did not actually
possess the records in July 2008, and SBA had no obligation
either to retain the records or to seek the records once they
were no longer in its possession. See Tax Analysts, 492 U.S.
at 145, 148 n.10. To the extent that an agency can construc-
tively possess documents in the hands of third parties, see
Berry v. Dep’t of Justice, 733 F.2d 1343, 1349 (9th Cir.
1984), there is no evidence in the record showing that SBA
 AMERICAN SMALL BUSINESS LEAGUE v. USSBA 17087
extensively supervised or was otherwise significantly entan-
gled with Verizon’s production and management of the
records. See Burka v. U.S. Dep’t of Health & Human Servs.,
87 F.3d 508, 515 (D.C. Cir. 1996). Absent agency control, the
records were not “agency records” subject to FOIA disclo-
sure. See Tax Analysts, 492 U.S. at 145.

[2] Second, the records do not come within the definition
of “records” codified in 5 U.S.C. § 552(f)(2)(B). Section
552(f)(2)(B) requires production only of documents “main-
tained for an agency by an entity under Government contract,
for the purposes of records management.” 5 U.S.C.
§ 552(f)(2)(B) (emphasis added). Here, it is undisputed that
Verizon did not maintain the phone records pursuant to a
records-management contract with SBA.

[3] ASBL nevertheless contends that the comma separating
“Government contract” from “for the purposes of records
management” means that the statute covers all records main-
tained for an agency by a government contractor, no matter
the purpose of the contract between them. This reading, how-
ever, contravenes the statute’s plain language. As a matter of
syntax, the latter phrase most naturally modifies only the for-
mer phrase. See Nw. Forest Resource Council v. Glickman, 82
F.3d 825, 832 (9th Cir. 1996). Moreover, this reading would
impermissibly either excise the phrase “for the purposes of
records management” from the statute or conflate that phrase
with the word “maintain.” See United States v. Mitchell, 502
F.3d 931, 948 (9th Cir. 2007) (observing “the ‘settled princi-
ple of statutory construction that [courts] must give effect, if
possible, to every word of the statute’ ” (quoting Bowsher v.
Merck & Co., 460 U.S. 824, 833 (1983))). And, “a purported
plain-meaning analysis based only on punctuation is necessar-
ily incomplete and runs the risk of distorting a statute’s true
meaning.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am.,
Inc., 508 U.S. 439, 454 (1993). Accordingly, because
§ 552(f)(2)(B)’s language is unambiguous, ASBL’s reliance
on the statute’s legislative history is misplaced. See Exxon
17088 AMERICAN SMALL BUSINESS LEAGUE v. USSBA
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568
(2005).

[4] Contrary to ASBL’s protestations, limiting the scope of
§ 552(f)(2)(B) to documents maintained by a third party under
a records-management contract does not render the statute
meaningless. Section 552(f)(2)(B) codifies the constructive
control theory that only a handful of courts have applied in
only a handful of decisions—and which at least one court has
recently rejected. See, e.g., Burka, 87 F.3d at 515 (applying
the theory); Missouri ex rel. Garstang v. U.S. Dep’t of Inte-
rior, 297 F.3d 745, 751 (8th Cir. 2002) (same). But see
Bloomberg L.P. v. Bd. of Governors of Fed. Reserve Sys., 649
F. Supp. 2d 262, 275 (S.D.N.Y. 2009) (declining to adopt
Burka’s constructive obtainment and control theory). The stat-
ute obviates predictable legal battles over constructive control
in the arguably common cases where a contractor maintains
agency records pursuant to a records management agreement
with the agency.

AFFIRMED.