Iturralde, Guillermo v. Compt Curcy, et al, No. 01-5367 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2002 Decided January 17, 2003

No. 01-5367

Guillermo Felipe DueNas Iturralde,

Appellant

v.

Comptroller of the Currency, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 97cv01519)

Jonathan Cohen argued the cause for appellant. With him

on the briefs were Alexander E. Eagleton and Herbert E.

Milstein.

Peter D. Blumberg, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-

tant U.S. Attorney. Heather J. Kelly, Assistant U.S. Attor-

ney, entered an appearance.

Before: Ginsburg, Chief Judge, and Rogers and Tatel,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Guillermo Felipe DueNas Iturralde

appeals the grant of summary judgment to the State Depart-

ment on DueNas's claim that it failed to conduct an adequate

search for documents that he requested under the Freedom

of Information Act, 5 U.S.C. s 552 ("FOIA"). Because Due-

Nas did not preserve a challenge to the sufficiency of the

Department's affidavit and, in attacking the adequacy of the

Department's search, has not presented evidence that would

tend to show that a particular document was in the Depart-

ment's files, we affirm.

I.

DueNas is a retired Ecuadorean admiral who was an execu-

tive of Banco de los Andes and of Banco de los Andes

International, banks that operate in Ecuador and the Carib-

bean island of Montserrat, respectively. When he sought to

purchase a bank in the United States, his application was

rejected by the Office of the Comptroller of the Currency

because DueNas had allegedly not been truthful in revealing

that Banco de los Andes International was under investiga-

tion for money laundering. DueNas subsequently filed a

request under the FOIA for all information relating to him

and Banco de los Andes in possession of the Comptroller, the

Drug Enforcement Agency ("DEA"), and, as later clarified,

the State Department. Dissatisfied with the responses that

he received, DueNas filed suit in the United States District

Court.

After the agencies had produced additional documents, the

district court granted summary judgment, concluding that the

agencies had properly withheld certain documents under the

FOIA exemptions and that the searches for documents had

been adequate. DueNas did not appeal the grant of summary

judgment to the Comptroller and the DEA. In an unpub-

lished order, this court summarily affirmed summary judg-

ment with respect to the State Department's invocation of

various exemptions to justify withholding documents. Thus,

the only issue in this appeal is DueNas's contention that the

State Department did not conduct an adequate search for

various records.

II.

Our review of the district court's grant of summary judg-

ment is de novo. Valencia-Lucena v. United States Coast

Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). At the summary

judgment stage, the agency has the burden of showing that it

complied with the FOIA, id., and in response to a challenge to

the adequacy of its search for requested records the agency

may meet its burden by providing "a reasonably detailed

affidavit, setting forth the search terms and the type of

search performed, and averring that all files likely to contain

responsive materials ... were searched." Id. (quoting Ogles-

by v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.

Cir. 1990)). The plaintiff may then provide "countervailing

evidence" as to the adequacy of the agency's search. Found-

ing Church of Scientology of Washington, D.C., Inc. v. Nat'l

Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979). "[I]f a

review of the record raises substantial doubt, particularly in

view of 'well defined requests and positive indications of

overlooked materials,' summary judgment is inappropriate."

Valencia-Lucena, 180 F.3d at 326 (quoting Founding Church

of Scientology, 610 F.2d at 837) (citation omitted).

DueNas contends that the State Department's search was

inadequate for two reasons: First, the search was inadequate

because the Department concluded that there were no docu-

ments responsive to his FOIA request in the Bureau of

International Narcotics and Law Enforcement Affairs, even

though the Bureau had published in 1993 an International

Narcotics Strategy Report ("1993 Report") that claimed that

Banco de los Andes was involved in money laundering; Due-

Nas attached the relevant pages of the report to one of his

requests to the Department. Second, the search was inade-

quate because the Department initially delayed its search for

documents.

In addressing DueNas's contentions the court is not pre-

sented with a properly preserved challenge to the adequacy

of the State Department's affidavit. At oral argument in this

court DueNas challenged the sufficiency of the affidavit, which

stated conclusorily that the Department had informed DueNas

by letter that a search of the files of the Bureau of Interna-

tional Narcotics and Law Enforcement Affairs had been

conducted, referencing several letters to DueNas. As DueNas

pointed out in oral argument, at no point does the affidavit

state under oath that a search of the files of the Bureau of

International Narcotics and Law Enforcement Affairs was

conducted or describe the nature of that search. Whatever

deficiencies may exist in this affidavit, see Valencia-Lucena,

180 F.3d at 326; Weisberg v. United States Dep't of Justice,

627 F.2d 365, 370 (D.C. Cir. 1980), however, DueNas never

challenged the sufficiency of the affidavit in the district court.

Consequently, any challenge to the adequacy of the Depart-

ment's affidavit is not properly before this court. Nat'l Rifle

Ass'n of Am. v. FEC, 854 F.2d 1330, 1336-37 (D.C. Cir. 1988);

Tarpley v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982).

Moreover, DueNas's briefs on appeal state only that the

affidavit was conclusory, without further argumentation or

further elaboration; this is the type of "asserted but unana-

lyzed" contention that is insufficient to preserve the issue on

appeal even if he had raised it in the district court. See SEC

v. Banner Fund Int'l, 211 F.3d 602, 613 (D.C. Cir. 2000)

(quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.

1983)). We therefore treat the affidavit as sufficient. Again,

the only question on appeal is whether DueNas has provided

sufficient evidence to raise "substantial doubt" concerning the

adequacy of the Department's search. See Valencia-Lucena,

180 F.3d at 326.

DueNas maintains that the State Department initially de-

nied that it had any responsive documents in its files, and

that this denial (later proven false) shows that the Depart-

ment's search was inadequate. However, the record reveals

that the Department's first response to DueNas's FOIA re-

quest was to send a form letter advising DueNas to seek the

materials from the Comptroller and the DEA. Apparently

the Department read his FOIA request only to seek records

from the Comptroller and the DEA, a reasonable conclusion

given DueNas's initial letter to the State Department; only

later did he clarify to the Department that he was also asking

it to search its own records. Once DueNas responded by

letter with a more specific request, referring to the 1993

Report, the Department began its search. In these circum-

stances we conclude that there is no evidence of bad faith by

the Department, particularly in view of the fact that initial

delays in responding to a FOIA request are rarely, if ever,

grounds for discrediting later affidavits by the agency. See,

e.g., Meeropol v. Meese, 790 F.2d 942, 952 (D.C. Cir. 1986);

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 772 (D.C.

Cir. 1981).

DueNas maintains further that the inadequacy of the search

is obvious in light of the fact that the Department failed to

find the 1993 Report referring to one of DueNas's banks as

being involved in money laundering. DueNas characterizes

this fact as a "positive indication[ ] of overlooked materials"

under Valencia-Lucena, especially since in correspondence

with the Department he mentioned the 1993 Report in seek-

ing associated documents. Arguably, such a "well defined

request" would make a court wary of summary judgment for

the government. Valencia-Lucena, 180 F.3d at 326. But it

is long settled that the failure of an agency to turn up one

specific document in its search does not alone render a search

inadequate. See Nation Magazine v. United States Customs

Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995); Meeropol, 790

F.2d at 952-54; see also Maynard v. CIA, 986 F.2d 547, 564

(1st Cir. 1993); Miller v. United States Dep't of State, 779 F.2d 1378, 1384-85 (8th Cir. 1986). Rather, the 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. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). After all, particular documents

may have been accidentally lost or destroyed, or a reasonable

and thorough search may have missed them. Miller, 779

F.2d at 1384-85; see also Goland v. CIA, 607 F.2d 339, 353

(D.C. Cir. 1978).

In certain circumstances, a court may place significant

weight on the fact that a records search failed to turn up a

particular document in analyzing the adequacy of a records

search. See Krikorian v. Dep't of State, 984 F.2d 461, 468

(D.C. Cir. 1993). However, DueNas fails to offer evidence of

circumstances sufficient to overcome an adequate agency

affidavit. DueNas does not maintain that the Department

failed to search particular offices or files where the document

might well have been found. See Valencia-Lucena, 180 F.3d

at 327; Krikorian, 984 F.2d at 468. Neither does he main-

tain that the Department failed or refused to interview gov-

ernment officials for whom there was strong evidence that

they might have been helpful in finding the missing docu-

ments. See Valencia-Lucena, 180 F.3d at 327-28. Nor does

he maintain that the Department ignored indications in docu-

ments found in its initial search that there were additional

responsive documents elsewhere. See Campbell v. United

States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). In

addition, DueNas does not point to evidence that would indi-

cate that at the time the Department searched its files there

was reason to believe that the 1993 Report was in those files.

Thus, this case is unlike Oglesby v. United States Dep't of the

Army, 79 F.3d 1172, 1185 (D.C. Cir. 1996), where there was

evidence in a published book that the agency had produced

records in response to a FOIA request by another individual,

or Founding Church of Scientology, 610 F.2d at 834, where

the court relied on the distribution of responsive documents

by the agency to other agencies. Further, in those cases, the

adequacy of the agency affidavits was at issue and the

affidavits were determined to be inadequate for purposes of

summary judgment. See Oglesby, 79 F.3d at 1185; Founding

Church of Scientology, 610 F.2d at 834-37. In short, "[m]ere

speculation that as yet uncovered documents may exist does

not undermine the finding that the agency conducted a rea-

sonable search for them." Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991); see also Meeropol, 790 F.2d

at 953-54.

Accordingly, we affirm the grant of summary judgment to

the Department.