John Passmore, Appellant v. United States Department of Justice, Appellee

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United States Court of Appeals, District of Columbia Circuit.

John Passmore, Appellant v. United States Department of Justice, Appellee

No. 17-5083

Decided: September 13, 2017

BEFORE: Kavanaugh, Pillard, and Wilkins, Circuit Judges


Upon consideration of the motion for summary affirmance, the opposition thereto, and the reply, it is

ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court correctly concluded that appellee's search for responsive records was adequate under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq. See Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (summary judgment proper when agency has shown “beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents”). Appellant's unsupported and speculative allegations that the FBI possesses, but is withholding, additional emails do not raise substantial doubt as to the adequacy of the search. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.”).

The district court did not err in determining appellant to be ineligible for a fee waiver, as disclosure of the records was not “likely to contribute significantly to public understanding of the operations or activities of the government.” See 5 U.S.C. § 552(a)(4)(A)(iii). Thus, the FBI had no obligation to provide copies of more than 100 pages—out of the 16,039 it originally identified as responsive to appellant's request—without his agreement to pay copying fees. See id. § 552(a)(4)(A)(iv)(II); 28 C.F.R. § 16.10(d)(4)(i); see also Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108, 1127 (D.C. Cir. 2004). Appellant asked the FBI to include specific categories of emails within that 100-page allotment, and he objects that the 100 pages the FBI produced were non-responsive to his specification. The FBI had no obligation to spend more than two hours searching free of charge. See 28 C.F.R. § 16.10(d)(4)(ii). But the record does not reflect that the FBI asked appellant to pay for staff time required to search within the 16,039 pages for the categories appellant prioritized. Nonetheless, the FBI appears to have ultimately searched within the documents in its possession and provided copies of the only ten pages of emails it had that fell within the specific categories appellant prioritized.

Further, to the extent appellant argues that the search was inadequate because appellee failed to search for emails within the files of two employees of Yahoo, Inc., or their successors, appellee had no obligation to retrieve documents from third parties. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155 (1980). Appellant has forfeited any challenge to the remaining portions of the district court's decision granting summary judgment by not addressing them on appeal. See U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily, arguments that parties do not make on appeal are deemed to have been waived.”).

Finally, the district court did not abuse its discretion in denying appellant's motion to compel discovery. See Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (stating that discovery in FOIA cases is “rare,” and unwarranted when requester “offered no evidence of bad faith to justify additional discovery”) (internal citations omitted); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (“This court will overturn the district court's exercise of its broad discretion to manage the scope of discovery only in unusual circumstances.”).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam