FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 16, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GILBERT D. DAVIS,
Plaintiff - Appellant,
v. No. 17-1325
(D.C. No. 1:16-CV-00701-CBS)
UNITED STATES DEPARTMENT OF (D. Colo.)
VETERANS AFFAIRS,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, McKAY, and KELLY, Circuit Judges.
_________________________________
Gilbert Davis filed this pro se action under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, to compel the United States Department of Veterans Affairs
(VA) to turn over all documents related to his claims for veterans benefits.1 A
magistrate judge acting on the parties’ consent, see 28 U.S.C. § 636(c)(1), granted
summary judgment to the VA, ruling that the record demonstrated the VA conducted
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1
We afford Davis’s pro se materials a liberal construction. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
a reasonable search for all responsive documents and Davis failed to show a material
fact dispute. The magistrate judge also ruled that Davis was not entitled to further
discovery. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
By our count, the VA has given Davis some six complete copies of his record.
We need not describe each instance, but suffice it to say that the VA has reviewed its
relevant databases on multiple occasions, recovered documents responsive to Davis’s
requests, and provided him with a complete copy of his claims file. Nevertheless,
Davis insists that the VA continues to withhold additional records, and he filed this
suit to obtain those documents. The VA continued to work with Davis after he filed
suit, and Davis met in person with the VA’s FOIA officer for the Denver regional
office, Greg Linnert. Even after personally observing Linnert search the VA’s
databases for his records, Davis remained convinced that the VA is withholding
records. With the parties unable to resolve the dispute, the VA moved for summary
judgment.
In its motion, the VA argued that it conducted a reasonable search of its record
systems and didn’t withhold any responsive documents. The VA further asserted that
it provided nearly 8,000 pages of material to Davis and was unaware of any records
that weren’t disclosed to him. The VA attached to its motion a declaration from
Linnert, who stated that he searched the VA’s three record database systems likely to
contain responsive documents: “the Veterans Benefits Management System
(VBMS), Virtual VA, and Veterans Appeals Control Locator System (VACOLS).”
2
R., Vol. 1 at 201. He stated that he searched each of these systems using Davis’s VA
file number and social security number, he obtained the same results from each
system, and he cross-referenced the other systems using Davis’s name, social security
number, and other identifying information. Linnert averred that, to his knowledge,
these three systems were the only databases likely to contain Davis’s records, all of
which were released to him.
In response, Davis argued that a copy of his records provided to him on
compact disc was unreadable. He also claimed the VA failed to disclose specific
records of “End Products,” “Deferred Ratings Decisions,” and records related to a
claim he made in 1997 wherein a VA staff member wrote, “Board Notes: Vet has
just submitted evidence showing that he was unemployable beginning in 1988, so I
guess we better get all the records of his employment.” Id. at 209.
The VA replied by pointing out that it gave Davis a replacement copy of his
records after he claimed the copy on compact disc was unreadable. The VA also
submitted a supplemental declaration from Linnert in which he averred that the
specific records Davis sought were already in his possession or weren’t records at all.
He explained that an “end product code” is not a record but rather a control number
used by the VA to designate certain actions taken by or on behalf of a veteran. Id. at
232. He indicated that end product codes would have been printed on documents that
were provided to Davis. Further, he explained that a “deferred rating decision” is
made when a VA disability-rating specialist concludes that additional information is
needed before making a determination on a veteran’s disability rating. Id. at 233. He
3
stated that deferred rating decisions and any associated documents would be included
in a veteran’s claims file. Finally, Linnert stated that documents relating to the 1997
claim should have been among the records released to Davis. He cited the specific
pages where those records were located—480 through 527—which, according to
Linnert, included a May 1997 claim made by Davis on the basis that he was
unemployable, documentation he submitted in support of the claim, and a VA note
indicating there was evidence that Davis was employable. See id.
Based on this record, the magistrate judge concluded that the VA conducted a
reasonable and adequate search for the requested documents. The magistrate judge
determined that Linnert’s declaration and supplemental declaration demonstrated that
his methodology of searching for responsive documents was appropriate and
reasonable. The magistrate judge also ruled that, without more, Davis’s mere
speculation that the VA withheld information was immaterial to the adequacy of its
search. And absent evidence that the VA attempted to conceal records or impede
Davis’s efforts to obtain his records, the magistrate judge concluded that he failed to
support his allegations of bad faith. Consequently, the magistrate judge entered
summary judgment for the VA and denied further discovery.
II
We review the district court’s summary judgment decision de novo, viewing
all reasonable inferences in favor of the non-moving party. Hull v. IRS, 656 F.3d
1174, 1177 (10th Cir. 2011). FOIA “requires federal agencies to make Government
records available to the public, subject to nine exemptions for specific categories of
4
material.” Milner v. Dep’t of Navy, 562 U.S. 562, 564 (2011). “The general rule
under FOIA is that a person is entitled to copies of a federal agency’s records upon
making a request that ‘reasonably describes such records’ and that complies with
required procedures for such requests.” Trentadue v. FBI, 572 F.3d 794, 796
(10th Cir. 2009) (quoting 5 U.S.C. § 552(a)(3)(A)(i)).
In responding to a FOIA request, an agency must conduct a search that is
“reasonable in scope and intensity.” Id. at 797 (internal quotation marks omitted).
We focus on the reasonableness of the search, not on whether there might be some
additional documents that the agency failed to uncover:
[T]he focal point of the judicial inquiry is the agency’s search process,
not the outcome of its search. The issue is not whether any further
documents might conceivably exist but rather whether the government’s
search for responsive documents was adequate, which is determined
under a standard of reasonableness, and is dependent upon the
circumstances of the case.
Id. (brackets, ellipsis, and internal quotation marks omitted). To support the
adequacy and reasonableness of its search process, an agency may provide detailed
affidavits or declarations showing the scope of its search. See id. at 807. “When the
agency has provided such affidavits, the nonmoving party must either produce
evidence contradicting the adequacy of the agency’s search or evidence of the
agency’s bad faith.” Schwarz v. FBI, No. 98-4036, 1998 WL 667643, at *2 (10th Cir.
Sept. 17, 1998) (unpublished).2 “‘In the absence of countervailing evidence or
apparent inconsistency of proof, such affidavits will suffice to demonstrate
2
We may consider non-precedential, unpublished decisions for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).
5
compliance with the obligations imposed by the FOIA.’” Trentadue, 572 F.3d at 807
(quoting Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001)).
Here, the VA clearly demonstrated that it conducted a search reasonably
calculated to uncover all responsive documents. Through Linnert’s declaration, the
VA established that Linnert “responded to several written, telephonic, and in-person
requests from Davis seeking records related to his various claims and appeals for
disability determinations and compensation from the VA.” R., Vol. 1 at 201. Linnert
stated that he searched the VA’s three database systems likely to contain Davis’s
records and obtained all records available in each system. He then cross-referenced
the results by searching each system using Davis’s name, social security number, and
other identifying information. On one occasion, Linnert searched the three systems
with Davis “looking over [his] shoulder at [his] computer screen.” Id. at 203. And
he provided Davis with printouts and screenshots of the searches he conducted and
repeatedly spoke with Davis to ascertain whether there might be additional
documents he could help him find. Davis insisted he was missing records pertaining
to his benefits claims and ratings decisions, but Linnert averred that those records are
stored in the VBMS and/or Virtual VA systems, along with the status of any appeal,
which also might have been stored in the VACOLS. He stated that all of these
systems were searched and the results were provided to Davis. These efforts describe
a reasonable search for all responsive documents.
Further, the VA established that it gave Davis his entire claims file and didn’t
withhold any responsive documents. Davis asserted he was missing records
6
associated with a February 2012 rating decision, but Linnert explained that those
records, which the VA attached to its summary judgment motion, see id. at 191-99,
were twice provided to Davis, id. at 205, para. 15. Moreover, Linnert’s supplemental
declaration clarified that other information Davis claimed was missing—“end
product codes”—are control numbers, not claims records, used by the VA to track
activity in a veteran’s file. He stated these numbers are “generally reflected on the
document that is included in the veteran’s claims file,” id. at 232, and our review
confirms that Davis possessed at least one document that bears an end product code,
see, e.g., id. at 156. Linnert also clarified that all information associated with a
“deferred rating decision” would be included in a veteran’s claim file. Finally, he
cited the specific pages where documents associated with the 1997 claim could be
located.
Against this detailed description of the VA’s methodology and efforts to
search for and provide Davis with all responsive documents, Davis offers only his
own speculative assertions that additional documents must exist. But “‘purely
speculative claims about the existence and discoverability of other documents’” are
insufficient to contradict an agency’s declarations for purposes of surviving summary
judgment. Trentadue, 572 F.3d at 808 (quoting SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991)). A “party opposing the motion for summary
judgment cannot . . . rest on mere allegations; rather, he must, by affirmative
response in affidavits or otherwise, set forth the specific facts showing there is a
genuine issue for trial. Bald claims that certain unidentified disputed material facts
7
exist do not” suffice. Wren v. Heckler, 744 F.2d 86, 90 (10th Cir. 1984) (citation
omitted).
Davis insists the VA stated only generally that certain documents are included
in a veteran’s file. But this argument mischaracterizes the record and improperly
focuses on the results of the search, not the reasonableness of its scope. Again,
Linnert stated that after repeatedly searching all three VA databases, he gave Davis
over 7,500 pages of documents comprising his entire claims file. He also cited the
specific pages of documents related to the 1997 claim. These are not general
averments, and Davis cites no evidence to rebut these representations.
Davis also contends we may infer that the VA acted in bad faith because it
initially invoked a statutory exemption to withhold records containing other veterans’
social security numbers. We doubt this manifests bad faith, but regardless, the VA
provided another copy of his record with the other veterans’ social security numbers
redacted. Moreover, the record doesn’t permit an inference of bad faith absent
countervailing evidence to impeach Linnert’s statement that he responded to several
requests for information and attempted to help Davis find his records.
Additionally, Davis questions whether documents relating to the February
2012 rating decision are part of his record. But this argument doesn’t bear on the
reasonableness of the search. To the extent Davis suggests these documents were
improperly withheld, the VA attached them to its summary judgment motion, see R.,
Vol. 1 at 191-99, and Linnert stated that they were provided to Davis, id. at 205,
8
para. 15. Davis offers nothing to rebut this evidence. Under these circumstances, the
magistrate judge properly granted summary judgment to the VA.
Finally, Davis contends the magistrate judge erred in denying his discovery
requests. He doesn’t specify the nature of his request, but in the district court he
essentially sought his entire VA record. We review for an abuse of discretion, see
Trentadue, 572 F.3d at 806, and perceive none. Davis has shown no factual dispute
regarding the VA’s good-faith efforts to comply with FOIA, nor has he offered any
evidence to question the veracity of Linnert’s declarations or the reasonableness of
the search he performed. Thus, there was no need for further discovery. See id. at
807 (“Discovery relating to the agency’s search and the exemptions it claims for
withholding records generally is unnecessary if the agency’s submissions are
adequate on their face, and a district court may forgo discovery and award summary
judgment on the basis of submitted affidavits or declarations.” (internal quotation
marks omitted)).
III
The judgment of the district court is affirmed.3
Entered for the Court
Nancy L. Moritz
Circuit Judge
3
We decline to consider Davis’s passing request to impose sanctions, which he
raised for the first time in his reply brief. See Muscogee (Creek) Nation v. Okla. Tax
Comm’n, 611 F.3d 1222, 1228 n.3 (10th Cir. 2010).
9