DLD-084                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-3475
                                     ____________

                 ZEFFIE NETIA SURGICK; CORDELIA JOHNSON



                                           v.

                    ACQUANETTA CIRELLA; ROSE SURGICK;
                       K. HOVNANIAN ENTERPRISES, INC.,
                  C/O ACQUANETTA CIRELLA [IN THE MATTER
                    OF JAMES LESLIE SURGICK (DECEASED)];
                          INTERNAL REVENUE SERVICE

                                  Zeffie Surgick,
                                          Appellant
                       __________________________________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                            (D.C. Civ. No. 09-cv-03807)
                          District Judge: Noel L. Hillman
                      __________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  January 10, 2013

              Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                           (Opinion filed: January 14, 2013)
                                 _________________

                                     OPINION
                                 _________________

PER CURIAM

      Appellant Zeffie Surgick and Cordelia Johnson, now deceased, brought suit pro se

against Acquanetta Cirella, Rose Surgick, K. Hovnanian Enterprises, Inc., and the
Internal Revenue Service (“the Service”) in the United States District Court for the

District of New Jersey after Surgick unsuccessfully sought information directly from the

Service, see 26 U.S.C. § 6103(e). Surgick and Johnson claimed that the defendants

denied them access to tax records and other information relating to the estate of their

father, James Leslie Surgick, and thereby violated their First Amendment and statutory

rights to freedom of information. In addition, they alleged that Cirella and Rose Surgick,

in exercising power of attorney over the estate, conspired to defraud them by concealing

the value of the estate, in violation of New Jersey law. 1

       In an order filed on June 15, 2010, the District Court granted K. Hovnanian’s

motion to dismiss and advised Surgick and Johnson to amend their complaint with

respect to the Service. K. Hovnanian had argued, and the District Court agreed, that, as a

private corporation, it was not subject to the Freedom of Information or Privacy Acts, and

it had no legal obligation to the plaintiffs to disclose its tax records.

       In August, 2010, Surgick and Johnson filed an amended complaint, alleging that

the Service violated the Freedom of Information Act (“FOIA”) by withholding

information pertaining to James Leslie Surgick and his estate, and his investment

interests. In a June 19, 2011 Opinion, the District Court recognized that dismissal of the

amended complaint should probably be granted to the extent that the plaintiffs sought

disclosure from the Service of K. Hovnanian’s tax information, but the court was

concerned about FOIA’s segregation requirement. Additionally, the District Court

recognized that representations made by the Service that its officials had conducted a

reasonable investigation for the documents requested; discovered that most of those

1
 Zeffie Surgick, Cordelia Johnson, Rose Surgick and Acquanetta Cirella are four of
James Leslie Surgick’s 12 children.
                                          2
documents were either destroyed or did not exist; and had provided the documents it did

have, should be presented in a motion for summary judgment.

       In August, 2011, the Service moved for summary judgment, Fed. R. Civ. Pro.

56(a), arguing that the plaintiffs did not have a valid FOIA claim regarding the tax

documents of James Leslie Surgick and his estate, and that it was entitled to summary

judgment regarding the request for the tax return information for K. Hovnanian because

K. Hovnanian had not consented to disclosure and because its tax records were exempt

from disclosure. Cirella and Rose Surgick filed a motion to dismiss the amended

complaint for lack of federal subject matter jurisdiction.

       In an order entered on March 29, 2012, the District Court granted summary

judgment to the Service. After a careful review of the specific information requested and

the Service’s declarations and exhibits regarding its investigation and actions, and the

response in opposition to the motion for summary judgment, the District Court

determined that there was no triable issue with respect to whether the Service was

improperly withholding information from the plaintiffs. In a thorough opinion, the

District Court concluded that the Service provided reasonable and sufficiently detailed

declarations of two Disclosure Specialists, and that those declarations established that all

files likely to contain responsive materials were searched. Officials had followed up on

the results of the searches by working with the Federal Records Center to locate any

responsive documents, and the Service had provided the plaintiffs with the only

responsive documents that were located. The Service had also properly advised the

plaintiffs that the majority of the requests sought records which were destroyed in

accordance with the Service’s record retention schedule, were nonexistent, or were never

                                              3
filed with the Service. In addition, the District Court determined that summary judgment

was proper on the plaintiffs’ requests regarding K. Hovnanian's tax information. The

plaintiffs had not obtained K. Hovnanian’s consent to disclosure, and FOIA’s segregation

requirement did not apply because the documents sought were fully exempt from

disclosure and did not contain any non-exempt information that the Service could

segregate and disclose. In the margin, the court concluded that there was no need for a

“Vaughn index.” See Surgick v. Cirella, 2012 WL 1067923 (D.N.J. March 29, 2012).

       Because the FOIA claim was dismissed, and there thus was no longer a federal

question, the District Court, in addition, sua sponte declined to exercise supplemental

jurisdiction over the plaintiffs’ state law claims and dismissed them without prejudice, 28

U.S.C. § 1367(c)(3). However, because the plaintiffs were proceeding pro se, the District

Court gave them one final opportunity to amend the complaint to allege a basis for

diversity jurisdiction over defendants Cirella and Rose Zurgick.

       Surgick and Cordelia Johnson’s daughter Charlotte Surgick responded by filing an

amended complaint, again claiming that Cirella and Rose Surgick denied them their

rightful inheritance. 2 In an order entered on April 27, 2012, the District Court noted that

ninety days had passed since the court was notified of Cordelia’s death, and the issue

whether Charlotte could be substituted under Fed. R. Civ. Pro. 25(a)(1) had not been

properly addressed in a substitution motion. Accordingly, the court dismissed Cordelia’s

claims. 3 The District Court then signaled its intention to dismiss Surgick’s amended



2
 Cordelia Surgick died in November, 2011.
3
 Rule 25(a)(1) provides: “If a party dies and the claim is not extinguished, the court may
order substitution of the proper party. A motion for substitution may be made by any
party or by the decedent’s successor or representative. If the motion is not made within
                                             4
complaint against Cirella and Rose Surgick on the basis of the probate exception to

federal court jurisdiction, see generally Three Keys Ltd. v. SR Utility Holding Co., 540

F.3d 220 (3d Cir. 2008). Surgick was given one more extension of twenty days in which

to properly plead a basis for federal court jurisdiction.

       Surgick, in response, moved to withdraw her amended complaint against Cirella

and Rose Surgick; she also filed a notice of appeal on May 14, 2012, seeking review of

the District Court’s March 29, 2012 order granting summary judgment to the Service.

We dismissed the appeal on July 12, 2012 as premature, see C.A. No. 12-2409, because

Cirella and Rose Surgick remained parties to the action and because the order appealed

had not been certified by the District Court pursuant to Fed. R. Civ. Pro. 54(b). In an

order entered on July 19, 2012, the District Court granted the motion to withdraw the

amended complaint and finally dismissed the claims against Cirella and Rose Surgick,

thereby bringing the case to a close. Surgick had sixty days from the date of this order in

which to file a timely notice of appeal, see Fed. R. App. Pro. 4(a)(1)(B) (authorizing 60-

day appeal period when United States is party). No notice of appeal was filed by

September 17, 2012. Instead, she filed a notice of appeal on October 16, 2012.

       Meanwhile, on August 28, 2012, Surgick filed a petition for panel rehearing in our

court in her jurisdictionally defective appeal, see C.A. No. 12-2409, which we denied.

But she also mailed a copy of her rehearing petition to the District Court, where it was

treated as a notice of appeal and filed on August 30, 2012. It was forwarded to this

Court, resulting in the instant appeal. Our Clerk granted Surgick leave to appeal in forma

pauperis and advised her that the appeal was subject to summary dismissal under 28

90 days after service of a statement noting the death, the action by or against the decedent
must be dismissed.”
                                              5
U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P.

10.6.

        The Service has moved to dismiss the appeal for lack of jurisdiction, and K.

Hovnanian Enterprises has submitted a letter joining in that motion. The Service argues

that the notice of appeal filed on October 16, 2012 was not timely filed under appellate

Rule 4, and the petition for rehearing which the Clerk of the District Court treated as a

notice of appeal, although timely filed under Rule 4, should not be treated as a notice of

appeal. In support, the Service argues that Surgick, although appearing pro se, is not an

unsophisticated litigant. When the jurisdictional defect in the appeal docketed at C.A.

No. 12-2409 was called to her attention, for example, she moved to withdraw the

amended complaint against Cirella and Rose Surgick. Moreover, Surgick knows the

proper format for a notice of appeal, having previously filed one. Surgick has filed a

motion to strike, in which she argues, in effect, that we should exercise jurisdiction in the

instant appeal.

        Federal Rule of Appellate Procedure 3(c) provides that a notice of appeal specify

the party taking the appeal, designate the order being appealed, and name the court to

which the appeal is taken. Fed. R. App. Pro. 3(c)(1)(A)-(C). “Form 1 in the Appendix of

Forms is a suggested notice of appeal.” See id. at Rule 3(c)(5). Without a doubt,

Surgick’s petition for panel rehearing does not conform to Form 1, but if a document

filed within the time specified by Rule 4 gives the notice required by Rule 3, it is

effective as a notice of appeal. Smith v. Barry, 502 U.S. 244, 248 (1992). The

requirements of Rule 3 are to be construed liberally, but “Rule 3’s dictates are

jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Id. In

                                              6
Smith, the Supreme Court held that an inmate’s informal brief, submitted in response to a

briefing order, could qualify as a notice of appeal; the case was remanded to the appeals

court.

         Not surprisingly, Surgick’s petition for panel rehearing which was filed on the

District Court docket on August 30, 2012 as a notice of appeal references on page 1

Surgick’s existing appeal to our Court (without identifying the specific court of appeals

docket number), and indicates an intent to have review of the District Court’s order of

March 29, 2012. On the second page of the petition, Surgick notes that her case became

appealable upon entry of the District Court’s July 19, 2012 order dismissing the

remaining claims against Cirella and Rose Surgick, and she notes that she “now” appeals

the order of the District Court denying her claim against the Service for disclosure of

records. Under these circumstances, we conclude that Rule 3(c)(1) is satisfied, and that

we have jurisdiction, 28 U.S.C. § 1291.

         We will summarily affirm the District Court’s order granting summary judgment

in favor of the Service and against Zeffie Surgick. Under Third Circuit LAR 27.4 and

I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no

substantial question is presented by the appeal. Summary judgment is appropriate where

the moving party shows that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). Although the initial burden is on the moving party to show the absence of a

genuine issue of material fact, the burden on the moving party may be discharged by

showing that there is an absence of evidence to support the nonmoving party’s case. See

id. at 325. Thus, to withstand a properly supported motion for summary judgment, the

                                              7
nonmoving party must identify specific facts and affirmative evidence that contradict that

which is offered by the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

257 (1986). A party opposing summary judgment must do more than just rest upon mere

allegations. See Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

       A District Court may order the production of documents pursuant to FOIA, 5

U.S.C. § 552(a)(4)(B), where (1) the requested documents are agency records; (2) the

records have been withheld by the agency; and (3) the withholding was improper. See

Coastal States Gas Corp. v. Dep’t of Energy, 644 F.2d 969, 974 (3d Cir. 1981). The

agency has a duty to conduct a reasonable search for responsive records. See Abdelfattah

v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007). To establish for

summary judgment purposes the adequacy of its search, the agency should provide a

“reasonably detailed affidavit, setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials . . . were

searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

       With respect to James Leslie Surgick and his estate, the plaintiffs sought tax

returns and records for numerous years. Based on the record in this case, the Service

established that it complied with its duty to conduct an adequate search of its Integrated

Data Retrieval System and to turn over all responsive documents in its possession.

Surgick failed to identify specific facts and affirmative evidence to contradict the

evidence offered by the Service in support of its argument that its search was adequate

and it was not improperly withholding documents. Thus, summary judgment was proper.

       With respect to K. Hovnanian, the plaintiffs sought corporate tax returns and

information concerning James Leslie Surgick’s interests in the corporation. Pursuant to

                                              8
FOIA exemption 3, 5 U.S.C. § 552(b)(3), and the tax code, 26 U.S.C § 6103(e)(1), the

Service is prohibited from releasing K. Hovnanian’s tax information to the plaintiffs

without K. Hovnanian’s consent, which the plaintiffs did not obtain. Section

6103(e)(1)(A)-(F) prohibits the disclosure of third-party tax return information, and

subparagraph (b)(2) broadly defines “return information” to include a “taxpayer's

identity, the nature, source, or amount of his income, payments, receipts, deductions,

exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies,

over assessments, or tax payments …,” id. at 6103(b)(2). Accordingly, summary

judgment was proper here as well. FOIA’s segregation requirement, 5 U.S.C. § 552(b)

(unnumbered paragraph) (any “reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of the portions which are

exempt under this subsection”), is not applicable because the Service established that the

information requested is exempt from disclosure, and established that there was no form

of non-exempt information in the documents requested which the Service could segregate

and legally disclose to the plaintiffs. See Church of Scientology v. Internal Revenue

Serv., 484 U.S. 9, 16 (1987) (“Congress did not intend [section 6103] to allow the

disclosure of otherwise confidential return information merely by the redaction of

identifying details.”). A “Vaughn index,” see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

1973), was unnecessary because the information sought plainly was confidential taxpayer

information.

       For the foregoing reasons, the order of the District Court granting summary

judgment to the Internal Revenue Service and against Zeffie Surgick on her FOIA claim

is summarily affirmed. The Service’s and K. Hovnanian’s motions to dismiss for lack of

                                               9
appellate jurisdiction are denied. Surgick’s motion to strike is denied as stated but has

been considered as a jurisdictional response.




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