                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-2006

Lechliter v. Rumsfeld
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4381




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 05-4381
                                  ________________

                              GERALD A LECHLITER,
                                                              Appellant

                                               v.

                   DONALD H. RUMSFELD, Secretary of Defense;
                          DEPARTMENT OF DEFENSE
                     ____________________________________

                    On Appeal From the United States District Court
                              For the District of Delaware
                              (D.C. Civ. No. 03-cv-1016)
                       District Judge: Honorable Kent A. Jordan
                    ______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 1, 2006

         Before: SCIRICA, Chief Judge, BARRY and COWEN, Circuit Judges

                                 (Filed June 1, 2006 )
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Gerald A. Lechliter appeals pro se from an order of the United States District

Court for the District of Delaware, granting the defendant’s motion for summary



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judgment in this action brought pursuant to the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552. For essentially the reasons provided by the District Court, we will affirm.

       In April 2003, Lechliter submitted a FOIA request to the Department of Defense

Directorate for Freedom of Information and Security Review (“DFOISR”) seeking “all

[Department of Defense (“DoD”)] documents related to the implementation of 10 U.S.C.

§ 1413 and its amendments.” 1 The DFOISR forwarded Lechliter’s request to the Office

of the Under Secretary of Defense (Personnel and Readiness) (“USD(P&R)”) and to the

Office of the Under Secretary of Defense, Comptroller, Program Budget Division,

Operations and Personnel Directorate (“USD Comptroller”).2 Those offices conducted

searches and forwarded potentially responsive documents to DFOISR, which released the

records in full on November 14, 2003.

       In the meantime, on November 7, 2003, Lechliter filed a complaint, which he later

supplemented with allegations that DoD’s search was inadequate and that it improperly



   1
    Section 1413 provides special compensation for certain severely disabled uniformed
services retirees. 10 U.S.C. § 1413 (repealed).
   2
     Lechliter’s request was also sent to the Defense Finance and Accounting Service
(“DFAS”), a DoD office responsible for implementation of § 1413. Before that agency
had an opportunity to respond, however, Lechliter informed DoD that a search of DFAS
was unnecessary, as a DFAS field office had already responded satisfactorily to a separate
FOIA request. Because Lechliter expressly limited the scope of his request, he cannot
now challenge the DFAS’s failure to respond. Cf. Halpern v. FBI, 181 F.3d 279, 289 (2d
Cir. 1999) (holding that “[b]ecause [requester] did not respond to [agency’s] request for
clarification [of interest in receiving cross-referenced files] until after he filed his
amended complaint, he lacked any grounds on which to plead that the [agency] had failed
to process the files.”)

                                            2
destroyed responsive documents.3 The government moved for summary judgment and

submitted affidavits from the former Director of DFOISR, and from USD(P&R) and USD

Comptroller employees who searched for records responsive to Lechliter’s request. The

District Court granted the government’s motion for summary judgment, concluding that

“[b]ecause Defendant has conducted a reasonable, adequate and good faith search, as

demonstrated by its affidavits, and has released all nonexempt material, it has properly

discharged its obligation under FOIA.” Lechliter v. Department of Defense,

371 F.Supp.2d 589, 597 (D.Del. 2005). After the District Court denied Lechliter’s

motion for reconsideration, he timely appealed.

       We employ a two-tiered test in reviewing an order of a district court granting

summary judgment in proceedings seeking disclosure under the FOIA. We must “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) (citations omitted). If it

did, we “must then decide whether that determination was clearly erroneous.” Id.

(citations omitted). Under this standard, we will reverse only “if the findings are

unsupported by substantial evidence, lack adequate evidentiary support in the record, are

against the clear weight of the evidence or where the district court has misapprehended



   3
     Because DoD released the documents after Lechliter filed his compliant, he was not
required to administratively appeal DoD’s November 14, 2003, response. See Pollack v.
Dep’t of Justice, 49 F.3d 115, 119 (4 th Cir. 1995) (“[I]t was error for the district court to
conclude that it was somehow deprived of jurisdiction because [the requester] failed to
file administrative appeals . . . during the litigation.”).

                                               3
the weight of the evidence.” Id. (quoting Lame v. United States Dep’t of Justice, 767

F.2d 66, 70 (3d Cir. 1985)).

         Under the FOIA, an agency has a duty to conduct a reasonable search for

responsive records. See Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir.

1990). The relevant inquiry is not “whether there might exist any other documents

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

adequate.” Steinburg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir.

1994). 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.” Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C. Cir.

1999).

         We agree that the detailed affidavits in this case establish that the search was

adequate and “reasonably calculated to uncover all relevant documents.” Oglesby, 920

F.2d at 68. In particular, the affidavit of the former Director of DFOISR explained that

he forwarded Lechliter’s FOIA request to the USD(P&R) and the USD Comptroller, the

offices determined to be the only ones likely to possess responsive documents. In both of

those offices, staff who maintained documents pertaining to § 1413 were directed to

search for responsive records. Affidavits from those employees indicate in detail their

methods for filing documents, describe the various files that they searched, and certify



                                                4
that they searched all records systems likely to contain responsive material. There is no

merit to Lechliter’s contentions that the affidavits did not provide enough detail and that

the number of affidavits was insufficient. See Perry v. Block, 684 F.2d 121, 127

(“affidavits that explain in reasonable detail the scope and method of the search

conducted by the agency will suffice to demonstrate compliance with the obligations

imposed by the FOIA.”).

       Lechliter argues that the search was not reasonable. For instance, he alleges that

the DoD should have “referred his request to FOIA offices in other DoD Components that

might have originated responsive documents.” Notably, however, Lechliter has not

pointed to any information in the disclosed documents indicating that other offices

maintain responsive records. Cf. Campbell, 164 F.3d at 27 (faulting FBI for limiting its

search where “express references” in responsive documents indicated that additional

material would be identified if other indices were searched). To the extent that Lechliter

contends that various documents were not located, it is important to emphasize that

“failure to turn up [a specified] document does not alone render the search inadequate.”

Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).

       Furthermore, Lechliter alleges that the DoD improperly withheld documents by

destroying responsive records. The FOIA “does not obligate agencies to create or retain

documents, it only obligates them to provide access to those which it in fact has created

and retained.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136,



                                             5
151 (1980). Here, the USD(P&R) employee’s affidavit explained that “old papers/folders

may be purged” when “program policy activity occurs,” and that “[e]mail documents are

regularly purged whenever time and attention allow.” That affidavit, which is

uncontradicted on this issue, also states that no documents “have ever been deliberately

destroyed in response to, or in an effort to avoid release to Mr. Lechliter.” Because the

DoD is not required to produce documents “if [it] is no longer in possession of the

documents for a reason that is not itself suspect,” there has been no improper withholding.

SafeCard Servs. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

       Finally, Lechliter challenges the DoD’s responses to a supplemental FOIA request

and to a clarification of his initial request, which he submitted during the pendency of this

litigation. In May 2003, Lechliter submitted a FOIA request for “congressional

communications” with DoD concerning § 1413. After initially informing Lechliter that it

could not locate any responsive records, the DoD performed another search, located

approximately 50 letters, and released them in full. Separately, in December 2003,

Lechliter supplemented his initial request in a letter to government counsel. As a result,

the DoD undertook additional searches in its General Counsel’s Office, the Department of

the Army, the Department of the Navy, and the Department of the Air Force. These

searches yielded additional documents, which were released to Lechliter. We agree with

the District Court that the DoD’s account of these searches is “more than sufficient to

support the conclusion that [it] conducted a reasonable and thorough search for



                                             6
responsive documents.” Indeed, in this instance, the DoD’s actions may be viewed as

evidence of its good faith efforts to satisfy its FOIA obligations. See Meeropol v. Meese,

790 F.2d 942, 953 (D.C.Cir. 1986) (“[T]he additional releases suggest a stronger, rather

than a weaker, basis for accepting the integrity of the search.”) (internal quotation

omitted).

       For the reasons given, we will affirm the judgment of the District Court. The

parties’ motions to expand the record are denied.




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