
    James Arthur MATTSON, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellee.
    No. 10-16112.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 14, 2011.
    Filed July 11, 2011.
    
      Ben Rosenfeld, Law Office of Dennis Cunningham, San Francisco, CA, Daniel Stotter, Stotter & Associates LLC, Corvallis, OR, for Plaintiff-Appellant.
    lia C. Deiss, Assistant U.S. Attorney, Office of the U.S. Attorney, San Francisco, CA, for Defendant-Appellee.
    Before: SCHROEDER and BEA, Circuit Judges, and ANELLO, District Judge.
    
    
      
       The Honorable Michael M. Anello, United States District Judge for the Southern District of California, sitting by designation.
    
   MEMORANDUM

James Arthur Mattson appeals the district court’s denial of his motion for attorney fees and costs under the Freedom of Information Act (“FOIA”), 5 U.S.C. section 552 et seq. Mattson contends the district court failed properly to apply the 2007 Openness Promotes Effectiveness in our National Government Act amendments to the FOIA fee provision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

To be eligible for fees uiider the FOIA fee section at issue, a party must show the filing of the lawsuit brought about “a voluntary or unilateral change in position by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii). Before Mattson filed the lawsuit, the Government informed Mattson it would conduct a further search for cross references. ER 108 ¶ 12. The record shows the documents produced after Mattson filed his lawsuit were located due to the Government’s efforts to search for other files it might have at its local offices and cross references. ER 171 and 189. Mattson did not establish the Government changed its position because, for one thing, Mattson never proved the Government ever took the position that it was refusing to produce these documents. Accordingly, the district court correctly concluded, under the FOIA fee provision, that Mattson is not eligible for fees under the FOIA.

We decline to address Mattson’s contention that the Government waived its right to challenge Mattson’s entitlement to fees. Because Mattson is not eligible for fees, we do not consider issues pertaining to entitlement to fees. Summers v. Dept. of Justice, 569 F.3d 500, 505 (D.C.Cir.2009).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     
      
      . Cross references are defined as "a mention of you by name or personal identifier in a file relating to another individual, organization, event, activity, or the like.” ER 171.
     