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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50246

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2009

Charles R. Fulbruge III

Clerk
No. 09-50246

2

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
No. 09-50246

3

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.