Fred Schoeffler v. Usda ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED J. SCHOEFFLER, No. 18-16371
Plaintiff-Appellant, D.C. No. 2:17-cv-00055-GMS
v.
MEMORANDUM*
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Argued and Submitted February 7, 2020
Phoenix, Arizona
Before: TASHIMA, HURWITZ, and MILLER, Circuit Judges.
Fred Schoeffler appeals from a summary judgment in favor of the United
States Department of Agriculture in Schoeffler’s action under the Freedom of
Information Act, 5 U.S.C. § 552. We have jurisdiction under 28 U.S.C. § 1291 and
review the grant of summary judgment de novo. Animal Legal Def. Fund v. U.S.
Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en banc) (per curiam).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We affirm.
1. The district court correctly found no genuine dispute of fact material
to whether the Department’s search for records was adequate with respect to
Request 4325-F. The statute requires an agency to “conduct[] a ‘search reasonably
calculated to uncover all relevant documents.’” Zemansky v. EPA, 767 F.2d 569,
571 (9th Cir. 1985) (quoting Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476,
1485 (D.C. Cir. 1984)). “In demonstrating the adequacy of the search, the agency
may rely upon reasonably detailed, nonconclusory affidavits submitted in good
faith.” Id.The Department’s declarations showed that the agency conducted an
adequate search. Harald Fuller-Bennett, an information specialist for the United
States Forest Service, stated that a colleague contacted the San Dimas Technology
Development Center—which Schoeffler concedes was the office most likely to
hold responsive documents—and that the relevant personnel at San Dimas
reviewed a Dropbox link containing certain files and “found that it included all of
its responsive records.” Another Service information specialist, Marie Derobertis,
testified similarly about searches in another office. We see no difference between
these searches and others whose adequacy we have upheld. See Zemansky, 767
F.2d at 572; Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 771–72 (9th Cir.
2015).
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We reject Schoeffler’s three other challenges. First, while non-expert
witnesses ordinarily may testify only as to matters within their personal
knowledge, an agency’s declarations in FOIA cases are exempt from that “personal
knowledge requirement.” Garris v. FBI, 937 F.3d 1284, 1292–93 (9th Cir. 2019);
see also Lane v. U.S. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008).
Second, even if the additional declarations the Department introduced on
reply were improper, Schoeffler waived his challenge to them by not objecting
below. See Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172 (9th Cir.
2018).
Third, Schoeffler’s evidence of the Department’s possession of responsive
documents is not dispositive or necessarily material to the legally determinative
question: “whether the search for those documents was adequate.” Lahr v. Nat’l
Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (quoting Zemansky, 767 F.3d
at 571). Even if the Department once held the recordings and transcripts Schoeffler
seeks, there is no genuine dispute of fact material to the adequacy of the
Department’s search.
2. We also affirm the grant of summary judgment as to Request 5736-F.
At oral argument, Schoeffler conceded that his merits arguments as to Request
5736-F are identical to his arguments as to Request 4325-F. We therefore assume
without deciding that Schoeffler exhausted Request 5736-F, and we reject
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Schoeffler’s arguments on the merits for the reasons stated above. See Yagman v.
Pompeo, 868 F.3d 1075, 1083–84 (9th Cir. 2017).
3. The district court did not abuse its discretion by denying Schoeffler’s
requests to take discovery. See Lane, 523 F.3d at 1134. The evidence does not
support Schoeffler’s assertion that the Department’s declarations were submitted in
bad faith. For example, viewing the evidence in the light most favorable to
Schoeffler, a 2013 email demonstrates that certain Service officials sought to
protect firefighter helmet video from immediate public release, but that video is not
within the class of responsive audio recordings and transcripts that Schoeffler
contends the government improperly withheld. We see no abuse of discretion in
the district court’s determination that discovery was unwarranted.
Schoeffler’s motions to supplement the record (Dkt. No. 9) and to take
judicial notice (Dkt. No. 32) are DENIED.
AFFIRMED.
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