United States Court of Appeals
For the First Circuit
No. 05-1820
GRAEME SEPHTON,
Plaintiff, Appellant,
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Selya, Lipez, and Howard, Circuit Judges.
Daniel J. Stotter, with whom Bromley Newton, LLP, Robert
Wolkon, and Wolkon & Pascucci, LLP were on brief, for appellant.
Karen L. Goodwin, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
March 31, 2006
HOWARD, Circuit Judge. In 1996, a passenger airliner
bound for Paris crashed in the Atlantic Ocean ten minutes after
departing from New York. All on board perished. Following an
investigation by multiple federal agencies, including the FBI, the
National Transportation Safety Board concluded that the probable
cause of the crash was an explosion in one of the fuel tanks. A
group of the victims' family members formed an unofficial
organization to conduct an independent investigation into the
crash. A member of that organization, Graeme Sephton, brought the
present action under the Freedom of Information Act (FOIA), 5
U.S.C. § 552, seeking records from the FBI concerning its
investigation. After almost five years of litigation and the
disclosure of nearly 600 pages of documents, the district court
concluded that the FBI had satisfied its obligation to conduct a
"reasonable" search for documents responsive to Sephton's FOIA
request, and accordingly granted it summary judgment. See Sephton
v. FBI, 365 F. Supp. 2d 91 (D. Mass. 2005). For substantially the
reasons offered by the district court, we affirm.
The district court's opinion provides a comprehensive
description of the lengthy procedural and factual history of this
case. See id. at 93-96. We therefore confine our narrative to the
essentials.
In September 1998, Sephton sent a letter to the FBI's New
York field office -- the office that had coordinated the FBI's
-2-
investigation -- requesting a list of all foreign material removed
or recovered from the victims' bodies and the results of any
forensic analyses performed by the FBI on such materials. The FBI
initially located 21 pages of responsive documents, but it resisted
disclosure of those documents on the grounds that their disclosure
either would interfere with an ongoing investigation, see 5 U.S.C.
§ 552(b)(7)(A), or violate the secrecy of federal grand jury
proceedings, see id. § 552(b)(3).
After exhausting his administrative remedies, Sephton
filed a federal action in July 2000 seeking disclosure of the
withheld documents and an injunction ordering the FBI to conduct a
thorough, good-faith search of its records for all documents
responsive to his request. The parties spent the next five years
litigating this case in the district court and in this court.
Along the way, the FBI relinquished the 21 pages of initially
withheld documents and conducted further searches yielding over 550
pages of additional documents that were subsequently delivered to
Sephton. The litigation proceeded, however, because Sephton
remained unconvinced that the FBI had conducted an adequate search.
By the time the district court issued its summary judgment ruling,
the FBI had submitted four affidavits attesting to and describing
its search for documents.
Scott Hodes, the Acting Unit Chief of the Litigation
Unit, Freedom of Information-Privacy Acts Section, Office of Public
-3-
and Congressional Affairs, described the FBI's Central Records
System (CRS) and explained how it was searched to comply with
Sephton's request. Hodes's successor, Christine Kiefer, described
the main file concerning the 1996 crash and how that file,
containing 80,000 pages, was organized into 97 sub-files. She
stated that the FBI had reviewed the list of sub-files and had
identified one particular sub-file, containing over 2,000 pages, as
the likely repository of the records Sephton sought. She also
stated that a paralegal had searched this sub-file "page-by-page."
Eileen Rawlinson, supervisor of the Legal Unit of the Freedom of
Information-Privacy Acts Group in New York, explained how the FBI
had initially overlooked 550 pages of responsive documents that
were later provided to Sephton. She also described the FBI's
further search efforts, including a "line-by-line" review of the
previously identified sub-file as well as a review of certain
records located in other areas of the main file. The final
affidavit, from Gregory Carl, Unit Chief of the Explosive Unit,
Scientific Analysis Section, Laboratory Unit, rebutted certain
claims made in Sephton's summary judgment submissions. Carl stated
that the FBI Laboratory has not, since 1995, maintained any records
systems containing records not reflected in the CRS.
The parties disputed before the district court whether
these affidavits established as a matter of law that the FBI had
adequately searched for documents responsive to Sephton's FOIA
-4-
request. Applying our precedent, the district court recognized
that although Sephton might prefer the FBI to search every file
that might conceivably contain responsive information, FOIA
requires a "reasonable" search, not an exhaustive one. See Maynard
v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) ("The crucial issue is
not whether relevant documents might exist, but whether the
agency's search was reasonably calculated to discover the requested
documents.") (internal quotation marks omitted). The court
reviewed the four FBI affidavits and found that they collectively
describe, "in a detailed and nonconclusory fashion, the structure
of the agency's file system, the scope of the search performed, and
the method by which it was conducted." Sephton, 365 F. Supp. 2d at
97 (setting forth the Maynard standard for establishing the
adequacy of an agency's search at the summary judgment stage). The
court further found that Sephton's affidavits were insufficient to
rebut the presumption of good faith that FOIA attaches to agency
affidavits. Id. at 97, 100; see Maynard, 986 F.2d at 560 (holding
that when an agency seeks summary judgment based on reasonably
detailed affidavits establishing that it conducted a reasonably
thorough search, "the FOIA requester can rebut the agency's
affidavit[s] only by showing that the agency's search was not made
in good faith"). Concluding that the FBI's search had met the FOIA
standard, the court granted its motion for summary judgment.
Sephton, 365 F. Supp. 2d at 101.
-5-
On appeal, Sephton challenges the district court's ruling
that the FBI's search was adequate. Our review of this ruling is
de novo. See Church of Scientology Int'l v. U.S. Dep't of Justice,
30 F.3d 224, 228 (1994). Because we agree that the FOIA standard
was met, for largely the reasons expressed in the district court's
cogent opinion, we see no utility in replicating its sound analysis
here. See Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d
218, 220 (1st Cir. 1996) ("[W]hen a lower court produces a
comprehensive, well-reasoned decision, an appellate court should
refrain from writing at length to no other end than to hear its own
words resonate.").1 We write briefly, however, to address one
argument raised by Sephton on appeal that he did not raise before
the district court.
Sephton contends that, by operation of Fed. R. Civ. P.
8(d), the FBI's failure to file an answer to his FOIA complaint
amounts to an admission to all of the allegations contained in the
complaint, including the allegation that "the FBI acted in bad
faith when, in response to plaintiff Sephton's legitimate FOIA
request . . . it did not conduct an adequate search of its records
. . . ." The FBI counters that Sephton forfeited this argument by
1
Because we agree that the FBI's affidavits establish that
copies of all potentially responsive documents -- including
documents originating from the FBI's Washington, D.C. offices --
would have been stored in the CRS and that the FBI adequately
searched the CRS, we need not consider Sephton's contention that
the FBI had an obligation to search offices other than its New York
office, the office to which the FOIA request was directed.
-6-
not raising it below. See B&T Masonry Constr. Co. v. Public Srv.
Mutual Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004).
The issue is foreit and does not call for an exercise of
our power to correct plain errors. See Chestnut v. City of Lowell,
305 F.3d 18, 20 (1st Cir. 2002) (en banc per curiam). At least two
other circuits have held that FOIA does not require an answer to
the complaint so long as the issues are otherwise joined, for
example, by the filing a dispositive motion. See Chilivis v.
Securities and Exchange Comm'n, 673 F.2d 1205, 1209 (11th Cir.
1982) (filing a motion to dismiss satisfies FOIA's requirement that
the agency file an answer or "otherwise plead"); Weber v. T.R.
Coney, 642 F.2d 91, 93-94 (5th Cir. 1981) (same with respect to a
motion for summary judgment). We needn't expressly adopt or reject
that proposition here; in light of the above precedent and the
language in the statute allowing an agency to "answer or otherwise
plead," 5 U.S.C. § 552(a)(4)(C), it was not plain error for the
district court to consider the issues joined upon the FBI's filing
of a motion for summary judgment.
Affirmed.
-7-