Cunningham v. Federal Aviation Administration

Filing 22

OPINION AND ORDER granting 11 Motion for Summary Judgment, denying 18 Motion to Exclude, granting 19 Motion for Leave to File. Signed by Judge Thomas W. Thrash, Jr on 8/29/13. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GERALD CUNNINGHAM,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:12-CV-3577-TWT

FEDERAL AVIATION
ADMINISTRATION,
Defendant.

OPINION AND ORDER

This is an action arising under the Freedom of Information Act. It is before the
Court on the Defendant’s Motion for Summary Judgment [Doc. 11]. For the reasons
set forth below, the Defendant’s Motion for Summary Judgment [Doc. 11] is
GRANTED.
I. Background
On January 24, 2011, the Federal Aviation Administration ("FAA") awarded
back pay to certain supervisors and managers that worked at the Atlanta Tower and
Terminal Radar Control Facility ("TRACON") between October 2002 and October
2004. (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J., Ex. 1.) Back pay was limited to

T:\ORDERS\12\Cunningham\msjtwt.wpd

those supervisors and managers still working at the Atlanta Tower and TRACON at
the time the award was made. (Id.)
On October 27, 2011, the Plaintiff Gerald Cunningham, pursuant to the
Freedom of Information Act ("FOIA"), requested from the FAA "documents related
to payments authorized by the FAA in 2011, to present and former Air Traffic Control
Specialists assigned to the Atlanta Tower and TRACON during the years 2002 to
2004." (Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 1.) Specifically, the Plaintiff
made seven requests:
Request 1. All documents relied upon by the FAA to justify the back pay
payments to supervisors and managers who worked at the Atlanta Tower
and TRACON during the period October 2002 through October 2004,
and who were presently employed by the FAA.
Request 2. All documents relied upon by the FAA in its decision not to
make back pay payments to supervisors and managers who worked at the
Atlanta Tower and TRACON during the period October 2002 and
October 2004, and who were retired from the FAA.
Request 3. All documents, including but not limited to the request,
justification and approval, related to the authorization of a Cash Award
to pay the back pay to the supervisors and managers in 2011 as indicated
in the chart attached hereto as Exhibit A.
Request 4. The Standard Form 52 - Request for Personnel Action for
each individual paid pursuant to the award-pay listed on Exhibit A.
Request 5. The Standard Form 50 - Personnel Action for each individual
paid pursuant to the award - back pay listed on Exhibit A.

T:\ORDERS\12\Cunningham\msjtwt.wpd

-2-

Request 6. The Standard Form 52 - Request for Personnel Action for
each supervisor or manager paid back pay for the 2002-2004 period who
was not covered by the award listed in Exhibit A.
Request 7. The Standard Form 50 - Personnel Action for each supervisor
or manager paid back pay for the 2002-2004 period who was not covered
by the award listed in Exhibit A.
(Compl. ¶ 14, Ex. 1.) The pro se Plaintiff made the request in anticipation of filing
an Age Discrimination in Employment Act case for former FAA employees who did
not receive back pay awards.
On October 27, 2011, FAA FOIA Specialist Joann Noonan acknowledged
receipt of the FOIA request. (Compl. ¶ 15.) Noonan informed the Plaintiff that the
FOIA request was assigned to two organizations within the FAA (1) Air Traffic and
(2) Human Resources. (Compl. ¶ 16.) Air Traffic was responsible for Requests 1-3.
(Cochran Decl. ¶ 5.) Human Resources was responsible for Requests 4-7. (Kowsky
Decl. ¶ 5.)
The first attempt at satisfying the Plaintiff’s FOIA request came on December
12, 2011. (Compl. ¶¶ 22-23.) Kimberly Moseley, Acting Executive Director of Human
Resource Management Programs and Policies, sent the Plaintiff information intended
to satisfy Requests 5 and 7. (Compl. ¶¶ 22-23.) On December 21, 2011, the Plaintiff
responded to the December 12, 2011 letter alleging that it did not satisfy Requests 5
and 7, and inquiring about his other requests. (Compl. ¶¶ 24-25.) Having received no

T:\ORDERS\12\Cunningham\msjtwt.wpd

-3-

other contact from the FAA, the Plaintiff sent several memoranda to Noonan between
December 12, 2011, and October 15, 2012, requesting status updates regarding the
FOIA request, and requesting information regarding the proper procedure for filing
an Administrative Appeal. (Compl. ¶¶ 28, 30, 32, 34, 39.)
On October 15, 2012, the Plaintiff filed this action for injunctive relief, alleging
a failure by the FAA to make the requested records available. [Doc. 1]. On
November 13, 2012, Walter Cochran (“Cochran”), FAA Vice President Terminal
Services, sent the Plaintiff records discovered in response to Requests 1-3 (“Cochran
Letter”).1 (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J., Ex. 1.) In response to
Request 1, the Defendant’s search produced a memorandum titled "Settlement
Agreement Extended to Managers of Atlanta TRACON" (“Settlement Memorandum”)
as well as the settlement itself. (Cochran Decl. ¶ 15.) The Settlement Memorandum
referenced a list of managers and the amount they each received in the settlement. (Id.
¶ 16.) The Plaintiff informed Cochran that the list was not included in the November
13, 2012 letter. (Id. ¶ 17.) The list has since been released in this litigation as an
attachment to the Declaration of Walter R. Cochran. (Id. at Ex. C.) As to Requests 2
and 3, the Defendant’s search yielded no results. (Id. ¶¶ 19-20.)

1

These records were obtained following a search described in the Cochran
Declaration.
T:\ORDERS\12\Cunningham\msjtwt.wpd

-4-

On November 29, 2012, Angela Wilson, FAA Acting Executive Director
Human Resource Management Programs and Policies, sent the Plaintiff records
discovered in response to Requests 4-7 (“Wilson Letter”).2 (Pl.'s Br. in Opp'n to Def.'s
Mot. for Summ. J., Ex. 2.) Wilson indicated that the SF-52 forms referenced in
Requests 4 and 6 were not saved because they were generated "in Human Resources
instead of the employees' Regional Office." (Id.) Thus, no records were delivered in
response to Requests 4 and 6. One SF-50 form was found in response to Request 5
and forty-five SF-50 forms were found in response to Request 7. (Id.) Initially, the SF50 forms provided in response to Request 7 were marked “NOT AN OFFICIAL
DOCUMENT,” and they were redacted to exclude certain personal information under
the FOIA exemption in 5 U.S.C. § 552(b)(6).3 (Id. at Ex. 3.) The Plaintiff took issue
with both the unofficial designation and the redacted information concerning
retirement eligibility. (Id.) The Defendant has since provided the Plaintiff with
official records that include the previously omitted information concerning retirement
eligibility. (Kowsky Decl. ¶¶ 29-30, 31.)

2

These records were obtained following a search described in the Kowsky
Declaration.
3

Excluded information included social security numbers, dates of birth,
veteran's preference, life insurance plan selected, and retirement plan. (Kowsky Decl.
¶ 29.)
T:\ORDERS\12\Cunningham\msjtwt.wpd

-5-

On December 13, 2012, the Plaintiff responded with an e-mail memorandum
indicating that SF-50 forms for five employees had not been provided. (Id. at Attach.
E.) Another search was conducted for the five names supplied by the Plaintiff. (Id. ¶
27.) SF-50 forms were discovered for two out of the five, and on December 19, 2012,
the Defendant submitted those SF-50 forms to the Plaintiff.4 (Id. ¶ 26.) The Defendant
also provided “screen shots” with information regarding payments to the three
employees for whom SF-50 forms were not generated. (Id. at Attach. F.) The
Defendant moves for summary judgment on the grounds that it has adequately
responded to the Plaintiff’s FOIA requests.
II. Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may be drawn in the light
most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). The party seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

4

The other three had been paid directly through Accounting and so no SF-50
form was generated for them. (Kowsky Decl. ¶ 22.)
T:\ORDERS\12\Cunningham\msjtwt.wpd

-6-

323-24 (1986). The burden then shifts to the nonmovant, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of material
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "A mere
'scintilla' of evidence supporting the opposing party's position will not suffice; there
must be enough of a showing that the jury could reasonably find for that party."
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).
III. Discussion
The FOIA provides a private right of action in a district court of the United
States against an agency to "enjoin the agency from withholding agency records and
to order the production of any agency records improperly withheld from the
complainant." 5 U.S.C. § 552(a)(4)(B). FOIA cases generally reduce to two issues.
The first issue is whether the agency conducted a reasonable search and produced the
resulting records; and the second issue is whether the agency properly withheld
documents, or redacted documents, pursuant to an applicable exemption. See White
v. FBI, No. 1:09-CV-421-RLV, 2010 U.S. Dist. LEXIS 144716, at *11 (N.D. Ga. May
7, 2010). Thus, the government may prevail on a motion for summary judgment in an
FOIA action if it "show[s] that its search was adequate and that any withheld
documents fall within a proper exemption to the FOIA." Id. If the defendant has
provided the plaintiff, in response to the plaintiff’s FOIA request, all nonexempt

T:\ORDERS\12\Cunningham\msjtwt.wpd

-7-

records discovered through an adequate search, the issue is moot. See Chilivis v. SEC,
673 F.2d 1205, 1209-10 (11th Cir. 1982).
The Plaintiff raised three distinct, yet related claims. First, he argues that the
Defendant has failed to conduct an adequate search under the FOIA and produce the
relevant records discovered. Second, he argues that the Defendant has acted in bad
faith by failing to retain certain records and delaying the production of records in
response to the Plaintiff’s FOIA request. Third, he argues that this Court should
permit limited discovery into the adequacy of the Defendant’s search. Each will be
discussed in turn.
A.

Adequacy of the Search

The adequacy of a search is judged by a reasonableness standard. See Ray v.
United States Dep’t of Justice, 908 F.2d 1549, 1558 (11th Cir. 1990), rev'd on other
grounds sub nom. United States Dep’t of State v. Ray, 502 U.S. 164 (1991). A search
will be considered adequate under the FOIA if "the agency . . . show[s] beyond
material doubt . . . that it has conducted a search reasonably calculated to uncover all
relevant documents." Id.

“The government agency may meet this burden by

producing affidavits of responsible officials 'so long as the affidavits are relatively
detailed, nonconclusory, and submitted in good faith.'” Id. If the government meets
this burden by proving that the search was reasonable “then the burden shifts to the

T:\ORDERS\12\Cunningham\msjtwt.wpd

-8-

requester to rebut the agency's evidence by showing that the search was not reasonable
or was not conducted in good faith.” Id. "The FOIA does not require an agency to
exhaust all files which conceivably could contain relevant information." Id. at
1558-59.
The Defendant submitted two declarations detailing the searches conducted in
response to the Plaintiff's seven FOIA requests. Requests 1-3 were assigned to
Terminal Services for response. (Cochran Decl. ¶ 5.) Walter R. Cochran, Vice
President of Terminal Services in the Air Traffic Organization at the FAA, attested to
the following. Four different departments within the FAA were involved in the search:
Terminal Field Services (AJT-6), Terminal Finance (AJT-4), the Requirements Office
of Field Service and Operations (AJT-62), and the Operations Account Group
(AJT-41). (Id. ¶¶ 9-11.) AJT personnel searched paper files and electronic files on
both their individual computers and on their networks. (Id. ¶ 12.) Search terms were
crafted based on the content requested by the Plaintiff as well as the relevant dates.5
(Id.) On November 13, 2012, the records discovered were sent to the Plaintiff. (Id. ¶
14.) Cochran stated that all files "reasonably expected to contain the requested
records" were searched. (Id. ¶ 22.)

5

The personnel used the search term "A80," which is shorthand to mean the
payments to air traffic control employees at the Atlanta Tower and TRACON.
(Cochran Decl. ¶ 12.)
T:\ORDERS\12\Cunningham\msjtwt.wpd

-9-

Requests 4-7 were assigned to the FAA Human Resources organization for
response. (Kowsky Decl. ¶ 5.) Kathleen Kowsky, employed by the FAA as Federal
Personnel Payroll System Program Manager, attested to the following. The Federal
Personnel Payroll System (FPPS) contains electronic personnel and payroll records,
which are maintained by the Department of Interior's (DOI) National Business Center.
(Id. ¶ 3.) Requests 4 and 6 requested certain SF-52 forms, whereas Requests 5 and 7
requested certain SF-50 forms. (Id. ¶¶ 6-9.) Thus, different search protocols applied
to each. Regarding Requests 4 and 6, the SF-52 forms were not saved because they
were generated "in headquarter's Human Resources instead of the employees'
Regional Office." (Id. ¶¶ 14, 16.) Thus, any search would have been futile.
Regarding Requests 5 and 7, a search was done using the Datamart Query
System, maintained by the DOI. (Id. ¶ 19.) The filters were selected based on the
information requested by the Plaintiff.6 (Id. ¶ 20.) The search produced both
employees whose payment was processed through the FPPS and those paid directly
through Accounting. (Id. ¶¶ 22-23.) The difference between the two was that SF-50

6

The filters used for the spreadsheet were: (1) Nature of Action- Code 849, Cash
Award. (2) The A80 (Atlanta TRACON) facility code. (3) An effective date of
06/28/11, the actual date the payments were processed in FPPS, during pay period
2011-14 (June 19-July 2, 2011). Time and attendance and payroll actions for that pay
period were processed the week of July 4-8, 2011, and the actual pay dates for
employees were July 12 or 13, 2011. (4) The employees' grades, showing that they
were Air Traffic Managers and Supervisors (MSS). (Kowsky Decl. ¶ 20.)
T:\ORDERS\12\Cunningham\msjtwt.wpd

-10-

forms were generated only for the employees whose payment was processed through
the FPPS. (Id. ¶ 22.) On November 29, 2012, the discovered records were sent to the
Plaintiff. (Id. at Attach. D.) The Plaintiff responded with an e-mail memorandum
indicating that SF-50 forms for five employees had not been provided. (Id. at Attach.
E.) Another search was conducted within the FPPS using the five names supplied by
the Plaintiff. (Id. ¶ 27.)
The Court finds the Defendant’s searches adequate to satisfy its obligations
under the FOIA. This Court recently reached a similar conclusion in White, 2010
U.S. Dist. LEXIS 144716. In that case, the plaintiff requested information regarding
his missing brother from the DEA. Id. at *1. In granting the defendant’s motion for
summary judgment, and denying the plaintiff’s discovery request, the Court looked
to two declarations regarding the search. Id. at *14-21. These declarations stated that
the DEA searched within the Investigative Reporting and Filing System (IRFS), the
only database the DEA found likely to contain information relevant to the plaintiff’s
request. Id. at *14-19. Further, the declarations stated that the search terms included
the name of the plaintiff’s missing brother, as well as his social security number and
date of birth. Id. The search yielded no results. Id. Here, the searches relating to the
Plaintiff’s requests were conducted in databases and files reasonably expected to

T:\ORDERS\12\Cunningham\msjtwt.wpd

-11-

contain relevant records. The searches were also tailored to the content that the
Plaintiff requested, as well as the relevant dates stipulated in his request.
The Plaintiff makes several arguments challenging the adequacy of the search.
First, the Plaintiff alleges that the two documents primarily relied upon by the
Defendant in support of its motion have not been authenticated. (Pl.'s Br. in Opp'n to
Def.'s Mot. for Summ. J., at 12-13.) The Plaintiff is referring to the Cochran Letter
regarding Requests 1-3 and the Wilson Letter regarding Requests 4-7. (Id.) The
Cochran Declaration authenticates the Cochran Letter and the Kowsky Declaration
authenticates the Wilson Letter. (Cochran Decl. ¶ 14; Kowsky Decl. ¶ 13.)
Second, the Plaintiff, citing Valencia-Lucena v. U.S. Coast Guard, 180 F.3d
321, 326 (D.C. Cir. 1999), argues that the Defendant’s failure to produce any records
for a number of his requests is grounds for challenging the adequacy of the search.
The fallacy in this argument is its focus on the product of the search rather than the
process. "Determining whether an agency conducted an adequate search does not
hinge on 'whether there might exist any other documents possibly responsive to the
request, but whether the search for those documents was adequate.'" White, 2010 U.S.
Dist. LEXIS 144716, at *14 (citing Steinberg v. United States Dep’t of Justice, 23
F.3d 548, 551, 306 U.S. App. D.C. 240 (D.C. Cir. 1994)). In White, this Court
rejected the argument that a search is inadequate merely because no records were

T:\ORDERS\12\Cunningham\msjtwt.wpd

-12-

found. See id. The Defendant has established that there is no genuine issue of material
fact concerning the nature of the Defendant’s search, nor a credible legal claim against
its adequacy.
B.

Destruction of Records and Delay

The Plaintiff alleges that the Defendant has acted in bad faith. First, the Plaintiff
argues that, contrary to FAA policy, the SF-52 forms were not saved and that this
merits “resolution by the Court.” (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J., at 1516.) Second, the Plaintiff argues that the FAA unnecessarily delayed producing the
records. (Id. at 17-20.) As a threshold matter, it is unclear whether Plaintiff raises both
arguments as separate claims or only to support the claim that the Defendant’s search
was inadequate. If intended as independent claims, both fail since the Court lacks
jurisdiction under the FOIA to provide an additional remedy for unauthorized
destruction or delayed production of records. See Ray, 908 F.2d at 1560 ("The
remedies that courts are authorized to grant in FOIA cases are expressly enumerated
in FOIA, and they do not include the issuance of an injunction against related agency
action."). As stated, the FOIA only provides a private right of action for the wrongful
withholding of records, and it limits the remedy to injunctive relief and associated
litigation costs. See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552 (a)(4)(E)(i). Conversely,

T:\ORDERS\12\Cunningham\msjtwt.wpd

-13-

if the Plaintiff did not intend both as separate claims, neither argument supports the
proposition that the Defendant’s search was inadequate.
First, the Defendant’s failure to save the SF-52 forms is immaterial to the
adequacy of the search itself. See Ray, 908 F.2d at 1559 (“[T]he fact that a document
once existed does not mean that it now exists . . . the [agency] is not required by
[FOIA] to account for documents which the requester has in some way identified if
it has made a diligent search for those documents.”). The fact that the SF-52 forms,
if still in existence, would have appeared during an adequate search does not render
the search inadequate. Even if, as the Plaintiff alleges, the SF-52 forms contained
important information, “it is not necessary 'to create a document that does not exist in
order to satisfy a [FOIA] request.'” Id. Further undermining the Plaintiff’s argument
is that the SF-52 forms were not destroyed following his FOIA request. (Pl.'s Br. in
Opp'n to Def.'s Mot. for Summ. J., Ex. 2.) They were never saved to begin with. (Id.)
Second, the Defendant’s delay in providing the Plaintiff with the requested
records is, without more, insufficient to show that the search was conducted in bad
faith. In FOIA cases, “[r]ather than announcing that a certain inference can always be
drawn from such a late production . . . the better course is to evaluate the reasoning
behind the delay.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d
1235, 1257 (11th Cir. 2008); see also Lee v. United States Attorney for the S. Dist. of

T:\ORDERS\12\Cunningham\msjtwt.wpd

-14-

Fla., 289 Fed. Appx. 377, 380-381 (11th Cir. 2008) (“[T]he fact that defendants did
not respond to Lee's request within 20 days of receipt does not support his claim of
bad faith . . . Defendants explained the reasons for any delays.”). The Defendant has
stated that the delay was caused by an excessive workload. (Cochran Decl. ¶ 23.)
Regardless, given the detailed description of the searches, the delay itself does nothing
to undermine their adequacy.
C.

Discovery

The Plaintiff requests an opportunity for limited discovery concerning the
adequacy of the search. “In FOIA cases, discovery is a question of fact which must
be determined from the agency's affidavit.” Friedman v. FBI, 605 F. Supp. 306, 316
(N.D. Ga. 1984). “If government affidavits in FOIA cases satisfy the court that the
search was adequate and complete, the court may deny discovery.” Id. Discovery may
be permitted “if the record demonstrates the presence of a factual dispute." Id.
Here, nothing in the Defendant’s declarations suggests a need for discovery.
There is no factual inconsistency between the declarations or any other indication of
bad faith that would call into question their credibility. The Plaintiff's claim amounts
to speculation that contradictory information may surface during discovery. This is
insufficient.

T:\ORDERS\12\Cunningham\msjtwt.wpd

-15-

IV. Conclusion
For the reasons set forth above, the Court GRANTS the Defendant’s Motion for
Summary Judgment [Doc. 11].

The Plaintiff’s Motion to Exclude Court's

Consideration of Reply Brief [Doc. 18] is DENIED. The Defendant’s Motion for
Leave to File Declarations with Reply Brief [Doc. 19] is GRANTED.
SO ORDERED, this 29 day of August, 2013.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

T:\ORDERS\12\Cunningham\msjtwt.wpd

-16-