     Case: 13-50912      Document: 00512822985         Page: 1    Date Filed: 11/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-50912
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 3, 2014
                                                                           Lyle W. Cayce
JAMES LUTCHER NEGLEY,                                                           Clerk

                                                 Plaintiff−Appellant,

versus

FEDERAL BUREAU OF INVESTIGATION,

                                                 Defendant−Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 5:12-CV-362




Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       The Federal Bureau of Investigation (“FBI”) interviewed James Negley
one night in 1995 as part of its investigation into the Unabomber, precipitating


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-50912
a series of Freedom of Information Act (“FOIA”) requests and related lawsuits
that continue to this day. Negley appeals a protective order and summary
judgment in a suit alleging the FBI inadequately responded to his FOIA
request. Because Negley has not identified a genuine dispute as to a material
fact regarding the adequacy of the FOIA search, we affirm.


                                        I.
      In 1995, the Washington Post printed a manifesto written by a domestic
terrorist commonly referred to as the Unabomber. Negley went to the Chico
State University library the day the manifesto was scheduled to be published
and offered the librarian twenty dollars to copy the article and leave it for him
at his hotel. After Negley left, the librarian called the authorities and reported
Negley’s suspicious behavior; the FBI contacted him by phone and sent an
agent to interview him at his hotel. After the interview, the FBI ruled Negley
out as a suspect.
      In 1999, Negley submitted a FOIA request to the FBI’s field office in
Sacramento, California, then sued (“Negley I”) challenging the adequacy of the
FBI’s production. The district court granted summary judgment to the FBI.
Negley submitted another FOIA request in 2002, this time to the FBI’s field
office in San Francisco. Negley sued (“Negley II”), again questioning the ade-
quacy of the production. That matter worked its way through the federal
courts until 2012, when the District of Columbia Circuit affirmed the summary
judgment.
      During the Negley II litigation, Negley filed another FOIA request with
the FBI seeking all of its records relating to him. He eventually sued on this
as well, arguing that the FBI had not adequately responded to his FOIA
request. He served a request for admissions and productions on the FBI, ask-
ing it to confirm or deny a wide variety of investigative actions aimed at him,
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                                        No. 13-50912
including surveillance, breaking into his house, and seizing possessions there.
In response, the FBI successfully asked the district court for a protective order.
The court granted the FBI’s motion for summary judgment, finding that it had
performed an adequate search in response to Negley’s FOIA request.


                                               II.
       A threshold issue is whether claim preclusion or issue preclusion bars
the district court from determining that the FBI’s search was unreasonable.
The FBI invoked res judicata, commonly referred to as claim preclusion, 1 and
the district court arguably based its decision in part on that doctrine. On
appeal, the FBI contends that collateral estoppel (issue preclusion) bars the
court from addressing the reasonableness of the FBI’s search.                        The FBI’s
attempt to change horses midstream is unavailing, however, because neither
doctrine applies.
       At issue is the district court’s decision in Negley II. Negley was suing
the FBI for not complying with its obligations regarding his 2002 FOIA
request. During that litigation, Negley filed the 2009 FOIA request that is the
subject of this appeal; the court ordered the FBI to conduct a search in response
to the 2002 request and eventually held, in response to a contempt motion, that
the agency was justified in limiting that search to only those documents in
existence at the time of the 2002 request. Negley v. FBI, 766 F. Supp. 2d 190,
194 (D.D.C. 2011). The court later granted summary judgment, stating that
the “search and production in response to the 2002 request were reasonable
under the specific circumstances of this case.” Negley v. FBI, 825 F. Supp. 2d


       1 “Res judicata” is also sometimes used as a broader term to encompass both claim
preclusion and issue preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (“The preclu-
sive effect of a judgment is defined by claim preclusion and issue preclusion, which are col-
lectively referred to as ‘res judicata.’”). The parties’ briefs, however, treat the district court
deciion as invoking only claim preclusion.
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63, 71 (D.D.C. 2011). The FBI claims that, because it also conducted a search
in response to the 2009 request during the Negley II litigation, the district
court’s decision established the adequacy of the search that was motivated by
the 2009 request.
       It is that limitation on the previous case that keeps preclusion from
applying. For issue preclusion to apply, the previous determination must have
been, among other things, “necessary to the decision.” 2 The Negley II court
was not faced with a challenge to the adequacy of the FBI’s search in response
to Negley’s 2009 FOIA request, which the district court itself acknowledged
had been made without that court’s knowledge and which more expansive than
the 2002 request. Negley, 766 F. Supp. 2d at 191–92. Even if the FBI had
identified some unequivocal expression of confidence from the district court
about the adequacy of the search in response to the 2009 request, the FBI has
not shown how such a determination was at all necessary to the court’s decision
on the adequacy of the search initiated in response to the 2002 request. At
most, in holding that the FBI was justified in limiting its search on the 2002
request to documents existing in 2002, that court relied on the fact that the
FBI was also responding to Negley’s 2009 FOIA request, see Negley, 825 F.
Supp. 2d at 71–72, but any statement of the district court about the adequacy
of the presently disputed search is irrelevant to that analysis.
       Claim preclusion is likewise inapplicable: It requires that the previous
suit involved “the same claim or cause of action,” 3 meaning both actions must
be based on “the same nucleus of operative facts.” 4 Here, the two actions are



       Bradberry v. Jefferson Cnty., Tex., 732 F.3d 540, 548 (5th Cir. 2013) (quoting Pace v.
       2

Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005)).
       3In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999) (quoting Swate v. Hartwell,
99 F.3d 1282, 1286 (5th Cir. 1996)).
       4   Southmark, 163 F.3d at 934 (quoting In re Baudoin, 981 F.2d 736, 743 (5th Cir.
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                                       No. 13-50912
based on two different FOIA requests of different scope made years apart.
Those requests might seek information related to a common nucleus of opera-
tive facts (whether the FBI performed any as-of-yet undisclosed surveillance of
Negley), but the suits are in response to distinct FOIA requests and the alleged
failures of the FBI flowing from those requests. This is the same conclusion
that the D.C. Circuit reached in Negley II, in which the district court had erron-
eously applied claim preclusion based on Negley I. See Negley v. FBI, 169 F.
App’x 591, 593–94 (D.C. Cir. 2006). Neither issue preclusion nor claim preclu-
sion applies to this case.


                                             III.
          Negley’s main claim on appeal is that the district court erred in granting
summary judgment because the FBI did not establish that its search was
reasonable. FOIA does not require an agency to show that it has identified
every document that is responsive to a request, but only that “it performed a
search reasonably calculated to yield responsive documents.” Batton v. Evers,
598 F.3d 169, 176 (5th Cir. 2010). The agency can satisfy that requirement
with affidavits that provide a detailed description of its search methods. 5 Some
courts have stated that satisfying this requirement shifts the burden to the
plaintiff to demonstrate bad faith, 6 and that is the rule the district court
applied. Negley contends that the court erred in requiring him to show bad
faith, claiming that his evidence goes to the adequacy of the search.




1993)).
        See Batton, 598 F.3d at 176; Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993);
          5

Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
         See, e.g., Sanders v. Obama, 729 F. Supp. 2d 148, 155 (D.D.C. 2010) (“Once an agency
          6

has provided adequate affidavits, the burden shifts back to the plaintiff to demonstrate a lack
of a good faith search.”).
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                                  No. 13-50912
      The burden-shifting statement relied on by the district court is an incom-
plete statement of the rule. The court was correct that the agency’s affidavits
are entitled to a “presumption of good faith,” but that does not mean that the
agency is entitled to a presumption that its search was adequate. Instead, an
agency’s affidavits are accorded a “presumption of legitimacy” that “assume[s]
that the [agency] is telling the truth in its affidavits.” Batton, 598 F.3d at 179.
Absent countervailing evidence by the plaintiff, the court will assume that the
agency is telling the truth about its search, but that does not mean that the
court must accept the agency’s assertion that the search was adequate.
      A plaintiff can overcome the presumption of legitimacy only by showing
that the agency acted in bad faith, see id., but he can defeat summary judgment
on the adequacy of the search by presenting evidence that the affidavits do not
describe an adequate search. A contrary rule would impose too high a burden
on the plaintiff and would be contrary to the summary-judgment standard,
allowing an agency affidavit definitely to settle the adequacy of a search in the
face of evidence that the search was inadequate. Instead, the plaintiff can pre-
vent summary judgment by introducing evidence that creates a genuine dis-
pute as to the adequacy of the search.
      This approach is consistent with the approach taken by the D.C. Circuit,
which has stated that a plaintiff can provide countervailing evidence about a
search to call into question its adequacy and thereby render summary judg-
ment inappropriate. See Founding Church of Scientology of Wash., D.C., Inc.
v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979). As the D.C. Circuit
explained in Oglesby, 920 F.2d at 68, the affidavit describing the search needs
to be detailed partly because such detail “is necessary to afford a FOIA
requester an opportunity to challenge the adequacy of the search.” Other
courts are also careful to separate the issues, stating that the plaintiff has the
burden to show bad faith once the agency has established that its search was
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                                       No. 13-50912
reasonable, not just once the agency has provided affidavits that would be
enough to establish reasonable searches standing alone. 7
       A plaintiff cannot call into question the adequacy of the search by engag-
ing in “[m]ere speculation that as yet uncovered documents may exist.” Safe-
Card Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). To justify rever-
sal, Negley needs to point to some genuine dispute as to a material fact that
made summary judgment inappropriate. He identifies two arguments he made
in the district court, but neither is sufficient.
       The first set of facts to which Negley points can be grouped together as
those facts that are not relevant to the adequacy of the search. One of them is
the FBI’s decision no longer to rely on the Privacy Act to justify certain with-
holdings. The district court correctly concluded that that decision does not
bear on the adequacy of the search. Negley has not identified the relevance of
that fact or any relevant inference to which it gives rise, and we can think of
none. Negley’s argument that the FBI failed timely to notify him of their refer-
ral of documents fails for the same reason: Negley has identified FBI practices
with which he disagrees, but that is not sufficient to survive summary
judgment.
       Negley’s second main argument in contesting summary judgment is that
the FBI’s search was inadequate because it failed to follow up on a lead that it
discovered while processing the request. On March 18, 2013, Negley’s attorney
received as part of a disclosure a copy of a 2002 fax transmittal sheet contain-
ing a handwritten notation that appears to read “case is still pending




       7 See, e.g., Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985) (“[O]nce
the agency has shown by convincing evidence that its search was reasonable, . . . then the
burden is on the requester to rebut that evidence by a showing that the search was not in
fact in good faith. Summary judgment would be improper if the adequacy of the agency’s
search were materially disputed on the record.”) (citations omitted).
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                                       No. 13-50912
500,000 pp in file 42,000 misc evidence.” 8 Negley contends that this notation
indicates there may be hundreds of thousands of pages that were not discov-
ered as a part of the previous search.
       Even if we accept arguendo that the notation indicates that there are
potentially 500,000 documents not discovered during the earlier search, that
would not affect whether the FBI conducted an adequate search. For a search
to be adequate, the law requires only that it be “reasonably calculated to yield
responsive documents.” Batton, 598 F.3d at 176. Post hoc evidence that the
search missed responsive documents does not render it inadequate.
       Negley relies on a line of cases from the D.C. Circuit holding that an
agency searching for documents responsive to a FOIA request has not per-
formed an adequate search if its initially reasonable search turned up leads
that it did not investigate further. The Fifth Circuit has not yet considered
whether to adopt this additional requirement for FOIA searches, and such a
doctrine would not help Negley anyway.
       The principal case for this doctrine is Campbell v. United States Depart-
ment of Justice, 164 F.3d 20 (D.C. Cir. 1998). There, the FBI searched its Cen-
tral Records System but not its “tickler” files, which are “duplicate file[s] con-
taining copies of documents, usually kept by a supervisor,” because they rarely
produce additional responsive documents. Id. at 27. Some of the documents
that the FBI did discover, however, made reference to tickler files, indicating
that those files may have had responsive documents. The D.C. Circuit held
that the FBI’s search was inadequate because it did not search the tickler files
for relevant documents in response to this lead. Id. at 28.
       The D.C. Circuit limits this requirement in a way relevant here. In



       8The handwriting makes it difficult to tell what exactly the note says, but this reading
has not been disputed by the parties.
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                                         No. 13-50912
Campbell, the court said the plaintiff is required to establish “a sufficient pred-
icate to justify searching for a particular type of record.” Id. The plaintiff in
Campbell had a clear lead identifying a particular type of record that could be
searched, namely, the tickler files. Likewise, in Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321 (D.C. Cir. 1999), the court described Campbell’s relevant
holding as obliging an agency to search a place “if the agency has reason to
know that certain places may contain responsive documents.” Id. at 327 (citing
Campbell, 164 F.3d at 28). 9
       Under this caselaw from the D.C. Circuit, even if we adopted the require-
ment that agencies responding to FOIA requests investigate leads that arise
during their investigations, such leads must contain sufficient information to
indicate the type of record or location that the agency must search. A naked
suggestion that additional files exist is not sufficient. The lead must include
some information that tells the agency how to change its search to make it
reasonable again. The contrary construction of the rule would undermine our
requirement that an agency establish only that its search was reasonable.
Allowing an indication that more records exist, without requiring an indication
of the types of records or their location, would change the agency’s obligation
from showing a reasonable search to proving a negative, namely, that there



       9  Valencia-Lucena, 180 F.3d at 328, also discusses an affirmative obligation on the
part of the agency to contact agency personnel “if there is a close nexus . . . between the person
and the particular record.” That does not require the FBI in this case to contact whoever
wrote the notation on the fax sheet. Valencia-Lucena involved a FOIA request to a particular,
physical logbook that had already been identified as a likely source of responsive information.
The Coast Guard could not locate the book, but the court held that the Coast Guard should
have contacted the lieutenant who had been in possession of the book at trial. The logbook
still satisfied the requirement that a particular type of record or location be identified. And
the D.C. Circuit even recognized the limited nature of the obligation to contact, stating that
it applied “[a]bsent any indication that an inquiry of [the agent] would be fruitless . . . because
the storage of the logbook was controlled by other persons or by internal procedures.” Id.
Expanding the contact obligation beyond these limited circumstances would unjustifiably
expand the scope of what an adequate search requires.
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                                       No. 13-50912
existed no more responsive documents.


                                             IV.
       Negley maintains that the district court erred in granting the FBI’s
motion for a protective order under Federal Rule of Civil Procedure 26(c). We
review the grant of a discovery order for abuse of discretion. Leatherman v.
Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1394
(5th Cir. 1994).
       It is within a district court’s sound discretion to halt discovery in a FOIA
case until after action on a motion for summary judgment. 10 As in many FOIA
cases, Negley was faced with uncontroverted agency affidavits establishing the
reasonableness of the search, and he could point to nothing creating a genuine
dispute as to a material fact that would bear on the adequacy of the search. As
the district court concluded, Negley’s discovery would have asked the FBI
whether it had conducted investigations of him and to produce related docu-
ments, essentially using discovery to replace FOIA. Negley has not identified
any way in which the district court abused its discretion in so limiting
discovery.
       AFFIRMED.




       10See, e.g., Maynard, 986 F.2d at 556 n.8; Carney v. U.S. Dep’t of Justice, 19 F.3d 807,
812 (2d Cir. 1994); Lane v. Dep’t of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008).
                                              10
