[NOT FOR PUBLICATION]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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