
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1841                                 JAMES D. HUNSBERGER,                                Plaintiff, Appellant,                                          v.                           FEDERAL BUREAU OF INVESTIGATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            James D. Hunsberger on brief pro se.            ___________________            Donald K. Stern, United States Attorney, and  George B. Henderson,            _______________                               ____________________        II, Assistant U.S. Attorney, on brief for appellee.        __                                 ____________________                                    March 14, 1997                                 ____________________                 Per   Curiam.    Plaintiff  James  Hunsberger  submitted                 ____________            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                                                        ___  ____  ______            of Scientology  Int'l v. United  States Dep't of  Justice, 30            _____________________    ________________________________            F.3d 224,  230 (1st Cir. 1994); Maynard v. CIA, 986 F.2d 547,                                            _______    ___            559-60 (1st Cir. 1993);  Gillin v. IRS, 980 F.2d  819, 821-22                                     ______    ___            (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                                     _______            quotation omitted).  Such a determination, which we review de            novo, see, e.g., Church of Scientology Int'l, 30 F.3d at 228,                  ___  ____  ___________________________            "is judged by  a standard of reasonableness  and depends upon            the facts of each case."  Maynard, 986 F.2d at 559.                                      _______                 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                                         -2-            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.            _______     __________________            1996), or to otherwise show "that the agency's search was not            made in good  faith," Maynard,  986 F.2d at  560, amounts  to                                  _______            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            _______            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                         ______  ____  ________    ______________________            Justice,  705 F.2d  1344,  1351 (D.C.  Cir.  1983); see  also            _______                                             _________            Miller v. United States Dep't of Justice, 779 F.2d 1378, 1384            ______    ______________________________            (8th  Cir. 1985) ("The fact that a document once existed does                                         -3-            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,                                                             ___ _______            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                                      ___            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                                         -4-            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                                     _______  ____   _____     _____            F.2d 281,  283-86 (7th  Cir.  1992) with,  e.g., Jacobsen  v.                                                ____   ____  ________            Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986).  In assessing            ______            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.                 _________                                         -5-
