Hunsberger v. FBI ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1841



                                 JAMES D. HUNSBERGER,



                                Plaintiff, Appellant,



                                          v.



                           FEDERAL BUREAU OF INVESTIGATION,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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            James D. Hunsberger on brief pro se.
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            Donald K. Stern, United States Attorney, and  George B. Henderson,
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        II, Assistant U.S. Attorney, on brief for appellee.
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                                    March 14, 1997

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                 Per   Curiam.    Plaintiff  James  Hunsberger  submitted
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            requests  to the  Boston division  of  the Federal  Bureau of



            Investigation under the Freedom  of Information Act, 5 U.S.C.



               552, and  the Privacy Act,  5 U.S.C.    552a,  in which he



            sought all records that  pertained to him.  The  FBI produced



            two  responsive documents.   Plaintiff  filed suit,  claiming



            that  an inadequate search had been performed.  From an award



            of summary judgment to the FBI, he now appeals.  We affirm.



                 Extended  discussion is unnecessary.   In  recent years,



            this court has fully  articulated the standards by  which the



            adequacy of an agency search is evaluated.  See, e.g., Church
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            of Scientology  Int'l v. United  States Dep't of  Justice, 30
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            F.3d 224,  230 (1st Cir. 1994); Maynard v. CIA, 986 F.2d 547,
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            559-60 (1st Cir. 1993);  Gillin v. IRS, 980 F.2d  819, 821-22
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            (1st  Cir. 1992)  (per curiam).   "The  crucial issue  is not



            whether  relevant  documents  might  exist,  but whether  the



            agency's  search was  reasonably  calculated to  discover the



            requested  documents."   Maynard, 986  F.2d at  559 (internal
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            quotation omitted).  Such a determination, which we review de



            novo, see, e.g., Church of Scientology Int'l, 30 F.3d at 228,
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            "is judged by  a standard of reasonableness  and depends upon



            the facts of each case."  Maynard, 986 F.2d at 559.
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                 Based on our review of the materials presented, we agree



            that  an award  of  summary judgment  was  appropriate.   The



            affidavit  of Supervisory Special Agent John Michael Callahan







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            establishes that a reasonably thorough  search was undertaken



            here.     He  has  described,  in   relatively  detailed  and



            nonconclusory  fashion, the  structure  of the  agency's file



            system,  the scope  of  the search  performed at  plaintiff's



            behest, and the method by which it was conducted.  Plaintiff,



            in turn, has failed to rebut this  affidavit.  His attempt to



            adduce  "positive  indications   of  overlooked   materials,"



            Oglesby  v. Department of Army, 79 F.3d 1172, 1185 (D.C. Cir.
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            1996), or to otherwise show "that the agency's search was not



            made in good  faith," Maynard,  986 F.2d at  560, amounts  to
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            nothing more than speculation.



                 In   contending  that   the   FBI  overlooked   relevant



            documents,  plaintiff points  to  three factors.   First,  he



            notes  that a 1989 teletype (of which he first learned during



            the course of other  FOIA litigation) was sent from  New York



            to Washington with a copy to Boston.  Yet as  we explained in



            Maynard,  the fact that a document refers to the existence of
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            other records  "does not  independently generate an  issue of



            material fact rendering summary  judgment improper so long as



            reasonably detailed, nonconclusory affidavits demonstrate the



            reasonableness  of the  agency's [subsequent]  search."   986



            F.2d at 562; accord, e.g., Weisberg v. United States Dep't of
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            Justice,  705 F.2d  1344,  1351 (D.C.  Cir.  1983); see  also
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            Miller v. United States Dep't of Justice, 779 F.2d 1378, 1384
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            (8th  Cir. 1985) ("The fact that a document once existed does







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            not mean that it now exists; nor does the fact that an agency



            created  a document  necessarily  imply that  the agency  has



            retained it.").



                 Second, plaintiff insists that the FBI must have records



            pertaining to his 1969 drug prosecution in Rhode Island state



            court.   Yet his assertion that the FBI not only participated



            in that investigation but retained records pertaining thereto



            is conjectural.  And even  if accurate, that assertion  would



            nonetheless fail  to call into  question the adequacy  of the



            search as detailed in  the Callahan affidavit.   See Maynard,
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            986 F.2d at 560 (satisfactory agency affidavit is "accorded a



            presumption of good faith, which cannot be rebutted by purely



            speculative  claims   about  the   existence  ...   of  other



            documents") (internal quotations omitted).



                 Finally, plaintiff complains  that the search failed  to



            look for entries involving possible misspellings of his name.



            Yet  "there is no  general requirement that  an agency search



            ... variant spellings."   Id.  And the fact  that the FBI did
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            at  one point misspell plaintiff's  name does not  call for a



            different result,  especially where  the record  reveals that



            the agency had corrected such error by December 1968.



                 In the alternative,  plaintiff alleges that, because  of



            his pro se status,  the district court erred in  entering its



            ruling  without first  ensuring  that he  had  notice of  the



            summary judgment requirements.   Yet we have no occasion here







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            to address whether such notice must always be afforded to pro



            se litigants in  the Rule  56 context--a matter  as to  which



            courts have  differed.   Compare, e.g.,  Timms v.  Frank, 953
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            F.2d 281,  283-86 (7th  Cir.  1992) with,  e.g., Jacobsen  v.
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            Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986).  In assessing
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            the adequacy  of the agency's  search, we have  accorded full



            consideration  to  plaintiff's (untimely)  opposition  to the



            summary  judgment  motion and  have  accepted  all reasonable



            factual allegations  in  his (unsworn)  submissions as  true.



            Even  on  that  basis,  an  award  of  summary  judgment  for



            defendant would be mandated.  The failure to advise plaintiff



            of the Rule 56 procedures, even if erroneous (a  matter as to



            which we intimate no view), would thus have been harmless.



                 Affirmed.
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