Nyerges v. Federal Aviation Administration ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2009
No. 09-50246 Charles R. Fulbruge III
Summary Calendar Clerk
JAMES NYERGES
Plaintiff - Appellant
v.
FEDERAL AVIATION ADMINISTRATION
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CV-172
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Appellant James Nyerges brought this Freedom of Information Act
(“FOIA”) suit, seeking to compel the release of documents from the Federal
Aviation Administration (“FAA”). The district court dismissed the action. We
AFFIRM.
FOIA directs that federal agencies must release certain information in
response to requests from the public. Following the denial of a request, an
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-50246
individual is required to exhaust the following procedures before proceeding to
the district court:
(A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall –
(i) determine within 20 days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify
the person making such request of such determination and the
reasons therefore, and of the right of such person to appeal to the
head of the agency and adverse determination; and
(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. If on appeal the denial of
the request for records is in whole or in part upheld, the agency
shall notify the person making such request of the provisions for
judicial review of that determination under paragraph (4) of this
subsection.
5 U.S.C. § 552(a)(6)(A); Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993).
Nyerges maintains that the following events fulfilled the exhaustion
requirement. On October 27, 2008, the initial FOIA request was filed with the
FAA. On November 3, 2008, the FAA responded, informing Nyerges that his
request was being withheld under the Privacy Act. Nyerges appealed to the FAA
Administrator on November 7, 2008. On November 28, 2008, the FAA
Administrator advised Nyerges that the FAA Southwest Region had been
instructed to respond to his request. The FAA Southwest Region did so by letter
on December 8, 2008. The Region informed Nyerges that it was producing some
of the requested information and that reconsideration of the partial denial could
be requested in writing to the FAA Administrator within 30 days.
Nyerges chose not to seek further consideration. Instead, he sought relief
in the district court. The district court subsequently dismissed Nyerges’s action
after determining that he failed to exhaust the available administrative review
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procedures. We review the district court’s grant of a motion to dismiss de novo.
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
The primary point of contention in this case is the effect of the letter from
the FAA Southwest Region, dated December 8, 2008. Nyerges submits that the
letter serves as the final word from the FAA. Once he received the partial
denial, he was free to proceed to the district court. He appealed once to the FAA
Administrator as required by statute; the Administrator told him that the
Southwest Region would respond to his request.
We do not accept that characterization of the events. The Southwest
Region’s letter clearly stated that Nyerges should seek reconsideration of the
partial denial by writing to the FAA Administrator. Far from being a final
ruling from the FAA Administrator, the Southwest Region’s letter revealed that
the final ruling remained the responsibility of the FAA Administrator. Because
Nyerges failed to comply with the instructions in the Southwest Region’s letter,
further and final review did not occur.
The district court’s decision to dismiss is AFFIRMED.
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