18-2541-cv
Zhao v. United States Department of State

                              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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
10th day of September, two thousand nineteen.

Present:         RALPH K. WINTER,
                 ROSEMARY S. POOLER,
                 REENA RAGGI,
                            Circuit Judges.

_____________________________________________________

WEN DONG ZHAO,

                                  Plaintiff-Appellant,

                         v.                                                  18-2541-cv

UNITED STATES DEPARTMENT OF STATE,

                        Defendant-Appellee.
_____________________________________________________

For Appellant:                    Wen Dong Zhao, pro se, Flushing, N.Y.

For Appellee:                     Joseph A. Marutollo, Varuni Nelson, Rachel G. Balaban, Assistant
                                  United States Attorneys, for Richard P. Donoghue, United States
                                  Attorney for the Eastern District of New York, Brooklyn, N.Y.

Appeal from the United States District Court for the Eastern District of New York (Donnelly, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiff-Appellant Wen Dong Zhao appeals from the July 24, 2018 judgment of the
United States District Court for the Eastern District of New York (Donnelly, J.), granting the
government’s motion for summary judgment. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        Zhao primarily argues that the district court erred in granting the government’s motion
for summary judgment because (1) the government’s search terms in responding to his Freedom
of Information Act (“FOIA”) request were inadequate, (2) the government’s search was
inadequate because it should have contacted the United States Ambassador to Thailand and “the
Thai lady who received the documents,” and (3) the government’s search was “too narrow in
temporal scope.” Appellant’s Br. at 8-10. These arguments fail.

       We review de novo a district court’s grant of summary judgment, “resolving all record
ambiguities and drawing all factual inferences in favor of the non-moving party.” ITC Ltd. v.
Punchgini, Inc., 482 F.3d 135, 145 (2d Cir. 2007). 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 and that any withheld documents fall within an exemption to the FOIA. See 5 U.S.C.
§ 552(a)(4)(B). “Affidavits or declarations supplying facts indicating that the agency has
conducted a thorough search and giving reasonably detailed explanations why any withheld
documents fall within an exemption are sufficient to sustain the agency’s burden.” Carney v.
U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (footnote omitted). “[A]n agency’s search
need not be perfect, but rather need only be reasonable.” Grand Cent. P’ship, Inc. v. Cuomo, 166
F.3d 473, 489 (2d Cir. 1999).

        First, the government submitted the sworn declaration of Eric F. Stein, the Director of the
Office of Information Programs and Services of the United States Department of State, who is
the official “immediately responsible for responding to [FOIA] requests.” App’x at 136. In his
declaration, Director Stein describes with reasonable specificity the search the government
conducted, including the search terms it employed. In particular, the government searched for
variations and iterations of Zhao’s name; “Bangkok,” where Zhao states he delivered the
materials; “Darryl N. Johnson,” the United States Ambassador to Thailand at the time Zhao
delivered the materials; and “Iraq War.” App’x at 140, 143. Zhao argues that the government
should have used the search terms “Saddam Hussein” as well as “any of the key words used in
the slogan by the United States in the Iraq War.” Appellant’s Br. at 10. But Zhao requested
documents “regarding the Iraq war”; his FOIA request did not mention Saddam Hussein. App’x
at 146. Additionally, Zhao’s brief does not clarify what he means by “the slogan by the United
States in the Iraq War.” The government’s search terms were reasonable.

        Zhao failed to raise his second and third arguments before the district court; accordingly,
these arguments are waived. “Although we may exercise discretion to consider waived
arguments where necessary to avoid a manifest injustice,” we decline to do so here, where Zhao
has “proffer[ed] no reason for [his] failure to raise the arguments below.” In re Nortel Networks
Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (internal quotation marks omitted).



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        We have considered the remainder of Zhao’s arguments and find them to be without
merit. Accordingly, we hereby AFFIRM the district court’s judgment.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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