                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2009

Thomas Wright v. Postmaster General o
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4685




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-4685


                                 THOMAS J. WRIGHT,
                                                Appellant
                                        v.

            JOHN E. POTTER, Postmaster General of the US Postal Service


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 4-07-cv-02073)
                    District Judge: Honorable James F. McClure, Jr.


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 19, 2009

            Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges

                              (Opinion filed June 30, 2009)




                                        OPINION


PER CURIAM

      Thomas J. Wright appeals the District Court’s grant of summary judgment in favor

of the Postmaster General of the United States in a suit Wright brought pursuant to the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5
U.S.C. § 552a. For the following reasons, we will affirm the District Court’s judgment.

       Wright is an employee of the Postal Service at the Post Office in Coudersport,

Pennsylvania. In March 2007, after learning that his official personnel file (OPF) had

been lost, Wright submitted a FOIA/PA request to the Postal Service for the return of his

OPF. Wright later amended his FOIA/PA request to add a request for a copy of his

“Form 6100A associated with [his] service,” which he believed to be “the form which

tracks all disclosures of [his] records.” (Supp. App. 38a.) The records custodian for the

Coudersport Post Office searched the vault where the records were located, searched the

file cabinets in his office, and called the former Postmaster (who retired in 2005) to

inquire into the file’s whereabouts. Despite a search which also included offices in

Wilkes-Barre, Harrisburg, Pittsburgh, and St. Louis, the Postal Service was unable to

locate Wright’s OPF. As a result, Kathy Gill, a Human Resources Generalist,

reconstructed Wright’s OPF and provided him a copy on September 7, 2007. The Postal

Service did not provide Wright with copies of any 6100 forms, claiming that the

Postmaster did not use form 6100 when sending OPFs to internal departments.

       The Postal Service entered a Final Agency Decision on Wright’s FOIA/PA claims

on October 19, 2007. Wright filed suit in the District Court on November 13, 2007,

requesting that the Postmaster produce his original OPF. On June 19, 2008, Wright’s

original OPF was located in a safe in the Coudersport office. The Postmaster gave

Wright an opportunity to review the file the same day that he found it. The Postal Service



                                             2
moved for summary judgment, arguing that the search was ultimately successful and that

no 6100 forms could be located, despite an extensive search. The District Court granted

the motion and dismissed the case. Wright filed a motion for reconsideration which the

District Court also denied. Wright then filed a timely notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291. The government argues that we

should employ the two-step standard of review we utilize in FOIA cases when a district

court grants summary judgment.1 It also correctly states that because Wright requested

his own personnel file, the PA’s provisions governing employees’ right to access their

own records control in this case. See 5 U.S.C. § 552a(d)(1). Under the PA, we review a

district court’s grant of summary judgment using the traditional standard: viewing the

facts in the light most favorable to Wright, whether there exist any disputed issue of

material fact and whether the ,Postmaster is entitled to judgment as a matter of law.

Cuccaro v. Sec’y of Labor, 770 F.2d 355, 357 (3d Cir. 1985).2

       The test under the FOIA and the PA is whether the agency conducted a reasonable

search for responsive records. Abdelfattah v. United States Dep’t of Homeland Sec., 488


   1
    Under this two-tiered review we first “decide whether the district court had an
adequate factual basis for its determination.” McDonnell v. United States, 4 F.3d 1227,
1242 (3d Cir. 1993). If the district court had an adequate factual basis for its decision, we
then ask whether that determination was clearly erroneous. Id.
   2
     We note that the District Court analyzed Wright’s claim under the FOIA and not
under the PA. Any error in this regard is harmless since the standard for whether a search
for records was adequate is identical under FOIA and the PA. See Lane v. Dep’t of
Interior, 523 F.3d 1128 1139 n.9 (9th Cir. 2008) (citing Hill v. United States Air Force,
795 F.2d 1067, 1069 n.4 (D.C. Cir. 1986) (per curiam)).

                                              3
F.3d 178, 182 (3d Cir. 2007) (per curiam). “To demonstrate 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.” Id. (citations and internal quotation marks omitted).

       Here, the District Court’s conclusions, that the Postal Service did not withhold any

documents from Wright and that the Postal Service’s search was reasonable are not

erroneous as a matter of law. Specifically, the Postal Service provided the affidavits of

three employees who were involved in the search for the OPF. The affidavits detailed the

thorough, and ultimately successful, search undertaken for Wright’s OPF. The affidavits

also indicate that the Postal Service does not use form 6100.

       Wright argues that the Postal Service refused to acknowledge his request for a

disclosure accounting form or “equivalent accounting” of who accessed his OPF and for

what purpose. However, the letters from the Postal Service demonstrate that it

acknowledged his request for the 6100 forms. (Supp. App. 44a.) As for “equivalent

accounting” forms, the affidavits state that the Postal Service does not keep a detailed

record of who accesses an employee’s OPF. Therefore, because Wright received all

available information he sought, and the Postal Service conducted an adequate search, the

District Court did not err in granting the Postal Service’s motion for summary judgment.

See Citizens Comm’n on Human Rights v. Food and Drug Admin., 45 F.3d 1325, 1328

(9th Cir. 1995) (“[T]he issue to be resolved is not whether there might exist any other



                                              4
documents possibly responsive to the request, but rather whether the search for those

documents was adequate.”).

      For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment in favor the Postmaster General.




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