2011 DNH 141 - Sensor Sys. v. Fed. Aviation Admin.

              UNITED STATES DISTRICT COURT FOR THE
                    DISTRICT OF NEW HAMPSHIRE


Sensor Systems Support, Inc.

     v.                                Civil N o . 10-cv-262-PB
                                       Opinion N o .

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. N o . 10) is granted.

      SO ORDERED.


                                        /s/Paul Barbadoro
                                        Paul Barbadoro
                                        United States District Judge

September 1 6 , 2011

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




                                    3