Corbett v. TSA, No. 22-6920, 2023 U.S. Dist. LEXIS 122955 (C.D. Cal. July 14, 2023) (Gee, J.)

Corbett v. TSA, No. 22-6920, 2023 U.S. Dist. LEXIS 122955 (C.D. Cal. July 14, 2023) (Gee, J.)

Re:  Requests for records concerning creation or maintenance of “MyTSA” mobile applications, as well as two separate alleged incidents involving TSA personnel

Disposition:  Dismissing plaintiff’s claims

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  In response to defendant’s mootness argument, the court finds that “[t]here is still a live controversy as to whether TSA has improperly withheld agency records in response to Requests Two and Three.”  The court relates that “[o]n September 25, 2022, fifty days after responding to TSA with respect to his Second Request, and over six months with no response regarding his Third Request, [plaintiff] filed suit against TSA seeking production of responsive documents.”  “On November 16, 2022, TSA sent [plaintiff] final determination letters regarding Requests Two and Three, informing him he had the right to appeal its decision to TSA’s FOIA Appeals Officer.”  “[Plaintiff] never did so.”  The court finds that “[w]hile it may have been helpful for [plaintiff] to request leave to file supplemental pleadings after TSA responded to his requests, [plaintiff’s] Complaint requests relief under FOIA’s general judicial review provision, 5 U.S.C. section 552(a)(4)(B), which fairly encompasses his disputes about TSA’s withholdings.”
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  In response to defendant’s exhaustion argument, “the Court dismisses [plaintiff’s] claims with respect to Requests Two and Three for failure to exhaust.”  The court first finds that “TSA’s affirmative defense of failure to exhaust should have been raised in a motion to dismiss, but to the extent it is raised in an [motion for summary judgment], the Court treats it []as a request for dismissal of the claims.”  “[Plaintiff] cites to FOIA’s constructive exhaustion provision to argue that exhaustion was not necessary but does not even acknowledge TSA’s final responses that postdate the filing of lawsuit.”  “[Plaintiff] does not provide any reason for not having responded to TSA’s final determinations, nor any reasons why the Court should waive the requirement in his case.”