Schwarz v. Department of Justice , 417 F. App'x 102 ( 2011 )

10-3065-cv
Schwarz v. Department of Justice, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 5th day of April two thousand and eleven.
PRESENT:
WILFRED FEINBERG,
JOHN M. WALKER, JR.
JOSÉ A. CABRANES,
Circuit Judges.
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EUGENIA SCHWARZ,
Plaintiff-Appellant,
v. No. 10-3065-cv
DEPARTMENT OF JUSTICE, CIVIL AND CRIMINAL DIVISIONS, DEPARTMENT OF HOMELAND
SECURITY,
Defendants-Appellees.
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FOR APPELLANT: Eugenia Schwarz, pro se, Jackson Heights, FL.
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FOR APPELLEES: Varuni Nelson and Elliot M. Schachner,
Assistant United States Attorneys, of counsel
(Loretta E. Lynch, United States Attorney for
the Eastern District of New York, on the brief),
Office of the United States Attorney for the
Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Brian M. Cogan, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Appellant Eugenia Schwarz, proceeding pro se, appeals from an award of summary judgment
in favor of the United States Department of Justice and the United States Department of Homeland
Security on her claims under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We
assume the parties’ familiarity with the facts and procedural history of the case, and the issues on
appeal.
We review de novo a district court’s grant of summary judgment under FOIA. See Nat’l Council
of La Raza v. Dep’t of Justice, 411 F.3d 350, 355 (2d Cir. 2005). “In order to prevail on a motion for
summary judgment in a FOIA case, the defending agency has the burden of showing that its search
was adequate . . . .” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). “Affidavits or
declarations supplying facts indicating that the agency has conducted a thorough search . . . are
sufficient to sustain the agency’s burden,” and we accord such affidavits a “presumption of good
faith.” Id. (footnote and citation omitted). This presumption “cannot be rebutted by purely
speculative claims about the existence and discoverability of other documents.” Grand Cent. P’ship,
Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (quoting SafeCard Serv., Inc. v. S.E.C., 926 F.2d 1197,
1200 (D.C. Cir. 1991)).
Having conducted de novo review of the record in light of these principles, we affirm the
judgment below for substantially the same reasons stated by the District Court in its well-reasoned
decision. See Schwarz v. Department of Justice, No. 10 Civ. 0562 (BMC) (LB), 2010 WL 2836322
(E.D.N.Y. July 14, 2010).
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CONCLUSION
We have considered Schwarz's arguments on appeal and conclude that they are without
merit. Accordingly, the judgment of the District Court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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