Sensor Systems Support, Inc. v. Federal Aviation Administration

Filing 18

///ORDER granting 10 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Sensor Systems Support, Inc.
v.

Civil No. 10-cv-262-PB
Opinion No. 2011 DNH 141

Federal Aviation Administration

MEMORANDUM AND ORDER

Sensor Systems Support, Inc. filed a complaint seeking to
compel the Federal Aviation Administration (“FAA”) to produce
records in response to its request under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552.

The statutory

provision on which Sensor Systems bases its claim for relief is
5 U.S.C. § 552(a)(6)(A)(ii), which requires agencies to act on
appeals from initial FOIA decisions within 20 days.

The FAA has

filed a motion to dismiss or in the alternative for summary
judgment.
Sensor Systems bases its complaint on the assumption that
the court can compel the FAA to disclose all requested documents
without redaction if the FAA violated its rights under 5 U.S.C.
§ 552(a)(6)(A)(ii).

This assumption is incorrect.

The FOIA gives federal courts the power to decide claims
that an agency has improperly withheld agency records.

5 U.S.C.

§ 552(a)(4)(B); Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 150 (1980).

It also authorizes a federal

court to review an agency’s failure to respond to a request for
expedited review of an FOIA request.

5 U.S.C. § 552(a)(6)(E)

(iii)-(iv); Judicial Watch, Inc. v. U. S. Naval Observatory, 160
F.Supp.2d 111, 112 (D.D.C. 2001).

The FOIA does not similarly

authorize a court to review an agency’s failure to act on an
appeal.

Although such a failure to act gives rise to a

presumption that the requester has exhausted administrative
remedies, 5 U.S.C. § 552(a)(6)(C)(i), it does not entitle the
requester to injunctive relief without a determination that the
records have been wrongfully withheld pursuant to § 552(a)
(4)(B).
Sensor Systems has made a conclusory allegation in the
complaint that “the FAA has wrongfully withheld agency records.
. . ,” but its complaint does not plead sufficient facts to
support a claim for relief under § 552(a)(4)(B).

Because the

court lacks the power to grant the only claim that Sensor
Systems has made, the FAA is entitled to summary judgment on the
complaint in its current form.

The court will delay entry of

final judgment for 20 days to give Sensor Systems an opportunity

2

to file an amended complaint setting forth a claim for relief
under § 552(a)(4)(B).
The FAA’s motion to dismiss or in the alternative for
summary judgment (Doc. No. 10) is granted.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
September 16, 2011
cc:

G. Shepard Bingham, Esq.
Matthew A. Caffrey, Esq.
Michael T. McCormack, Esq.

3