

                    [NOT FOR PUBLICATION]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

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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

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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

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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.                          

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