Mark Jackson v. US General Services Admin

• Court: Court of Appeals for the Third Circuit
• Decided: April 13, 2018
• Docket: 17-2847
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 17-2847 ___________

MARK JACKSON, Appellant

v.

UNITED STATES GENERAL SERVICES ADMINISTRATION; UNITED STATES DEPARTMENT OF THE TREASURY ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:16-cv-05253) District Judge: Honorable Cynthia M. Rufe ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 2, 2018 Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges

(Opinion filed: April 13, 2018) ___________

OPINION* ___________

PER CURIAM

Mark Jackson appeals pro se from an order of the United States District Court for

the Eastern District of Pennsylvania granting the defendants’ motion for summary

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. judgment in this action brought pursuant to the Freedom of Information Act (FOIA), 5

U.S.C. § 552, and the Privacy Act (PA), 5 U.S.C. § 552a.

In July 2016, Jackson filed FOIA/PA requests with the Internal Revenue Service

(IRS) and the General Services Administration (GSA), seeking records pertaining to

himself. In particular, Jackson sought information related to his unsuccessful application

for a job as an IRS revenue agent.1 After conducting searches in several databases, the

agencies released in full 174 pages of responsive documents. In his complaint, Jackson

alleged that the agencies’ searches for responsive records were inadequate. The

defendants filed a motion for summary judgment, and submitted declarations from the

IRS and GSA employees who searched for records responsive to Jackson’s request. The

District Court granted the motion for summary judgment, concluding that the

“Defendants have established as a matter of law that their searches were adequate and

undertaken in good faith.” Jackson v. United States Gen. Servs. Admin., 267 F. Supp. 3d

617, 624 (E.D. Pa. 2017). Jackson appealed.

We employ a two-tiered test in reviewing an order of a district court granting

summary judgment in proceedings seeking disclosure under the FOIA. First, we must

“decide whether the district court had an adequate factual basis for its determination[;]”

and, second, we must “decide whether that determination was clearly erroneous.”

1 Initially, the IRS informed Jackson that he had been selected for the position, conditioned upon favorable suitability checks, including those related to his criminal history. Later, however, the IRS withdrew its offer because a fingerprint check revealed pending criminal charges against Jackson. 2 Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007)

(quotations, citations omitted). Under this standard, we will reverse only “if the findings

are unsupported by substantial evidence, lack adequate evidentiary support in the record,

are against the clear weight of the evidence or where the district court has

misapprehended the weight of the evidence.” Id. (quoting Lame v. United States Dep’t

of Justice, 767 F.2d 66, 70 (3d Cir. 1985)). Summary judgment may be granted on the

basis of agency affidavits if they are specific and detailed, and if there is no contradictory

evidence on the record or evidence of agency bad faith. See Manna v. U.S. Dep’t of

Justice, 51 F.3d 1158, 1162-63 (3d Cir. 1995); Am. Friends Serv. Comm. v. Dep’t of

Defense, 831 F.2d 441, 444 (3d Cir. 1987).

Under the FOIA, an agency has a duty to conduct a reasonable search for

responsive records. See Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir.

1990). The relevant inquiry is not “whether there might exist any other documents

possibly responsive to the request, but rather whether the search for those documents was

adequate.” Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir.

1994) (quoting Weisberg v. Dep’t. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To

demonstrate the adequacy of its search, the agency should provide “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.” Valencia-Lucena

v. United States Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).

3 We agree that the defendants’ submissions in this case establish that the search

was adequate and “reasonably calculated to uncover all relevant documents.” Oglesby,

920 F.2d at 68. The defendants submitted detailed declarations from a Government

Information Specialist in the IRS’s Disclosure Office and from the GSA employee in

charge of the “USAccess” system, which helps process identification cards for federal

agencies. Those declarations described Jackson’s request, identified the employees who

were involved in the search, explained the search terms used, specified the systems that

were searched, and stated that all files likely to contain responsive materials had been

searched. The IRS and GSA employees also submitted amended and supplemental

declarations in response to specific complaints raised by Jackson in response to the

motion for summary judgment. For instance, in response to Jackson’s charge that the

defendants failed to treat his request as arising under the Privacy Act, and thereby failed

to conduct adequate searches, the amended declarations made clear that the defendants

did not limit their searches, or withhold documents, on the basis that they were

responding to only a FOIA request. Furthermore, the supplemental declarations

described additional searches that were conducted based on Jackson’s claim that the

initial searches were inadequate. In addition to the declarations, the defendants produced

a chart that outlined each of the requested documents and the databases where Jackson

believed those documents could be found, along with a corresponding description of the

search methods and results.

4 In his brief, Jackson alleges that the IRS failed to conduct a search of its “HR

Connect” database. According to Jackson, that database contains material that he

submitted as part of his employment application. Notably, however, the defendants

searched for and located Jackson’s complete applicant file in a separate database used to

store information pertaining to new hires. That search was reasonably calculated to

uncover the responsive documents, and Jackson’s “mere speculation that as yet

uncovered documents might exist, does not undermine the determination that the agency

conducted an adequate search for the requested records.” Wilbur v. CIA, 355 F.3d 675,

678 (D.C. Cir. 2004).

Jackson also complains that “there is no information provided as to the process

used by [an IRS employee who works in Employment Operations] in choosing which

databases to search.” But that IRS employee adequately explained that she “chose to

search the locations she searched based on her own personal knowledge of the files

maintained in such systems.” Cf. Spannaus v. U.S. Dep’t of Justice, 813 F.2d 1285, 1289

(4th Cir. 1987) (holding that declarant’s attestation “to his personal knowledge of the

procedures used in handling [the] request and his familiarity with the documents in

question” satisfies “personal knowledge” requirement of Federal Rule of Civil Procedure

56). Furthermore, contrary to Jackson’s contention, the search was not deficient simply

because the IRS found additional documents in response to requests that Jackson made

5 during the District Court proceedings.2 See Meeropol v. Meese, 790 F.2d 942, 953 (D.C.

Cir. 1986) (“[T]he additional releases suggest a stronger, rather than a weaker, basis for

accepting the integrity of the search.”) (internal quotation omitted).

Jackson further complains that the defendants did not disclose emails which he

believes must exist. But an agency’s failure to locate every responsive record does not

undermine an otherwise reasonable search. Lahr v. NTSB, 569 F. 3d 964, 988 (9th Cir.

2009) (“[T]he failure to produce or identify a few isolated documents cannot by itself

prove the searches inadequate.”). Jackson also argued that the declarations were deficient

because they failed to explain “what search actually produced” four specific pages from

the “USAccess” system. To the extent that such an accounting is required, we conclude

that the GSA employee in charge of the “USAccess” system adequately explained that he

located those pages after using the “Applicant Status Report tool” to search “all files

likely to contain responsive materials.”

Furthermore, we will not consider the new evidence that Jackson presents on

appeal. The Rules of Appellate Procedure state that the record on appeal consists of the

“original papers and exhibits filed in the district court.” Fed. R. App. P. 10(a). Although

Rule 10(e) allows the record to be supplemented, its purpose is to “correct inadvertent

2 In response to the defendants’ motion for summary judgment, Jackson complained that the IRS did not search the Security Entry and Tracking System, the GovTrip database, or the SmartPay database. While not conceding that its initial searches were inadequate, the defendants, “in a showing of good faith,” searched those records systems. No responsive documents were located in the Security Entry and Tracking System. Searches of the GovTrip and SmartPay database yielded responsive documents, totaling nine pages. 6 omissions, not to introduce new evidence.” In re: Application of Ariel Adan, 437 F.3d

381, 389 n.3 (3d Cir. 2006). Accordingly, we “will not consider new evidence on appeal

absent extraordinary circumstances.” Id. (extraordinary circumstances are those that

render the case moot or alter the appropriateness of injunctive relief, show a change in

pertinent law, or demonstrate facts of which a court may take judicial notice). Here,

Jackson seeks to introduce “an email-chain” that was disclosed to him in connection with

an Equal Employment Opportunity Commission proceeding. He claims that the

existence of the emails demonstrates that the defendants’ searches were inadequate. We

conclude that this does not qualify as an extraordinary circumstance for purposes of

supplementing the record on appeal. Moreover, even if we did consider the new

evidence, it would not alter our determination that the defendants’ searches were

adequate. See Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir.

1995) (“Of course, failure to turn up [a specified] document does not alone render the

search inadequate.”).

Finally, citing the Privacy Act, Jackson asserts that the defendants should expunge

“derogatory information” that appears in his employment application records. The

Privacy Act allows an individual to “request amendment of a record pertaining to him”

on the basis that it is “not accurate, relevant, timely, or complete[,]” 5 U.S.C.

§ 552a(d)(2)(B)(i), and permits a court to order an agency to amend an individual’s

record. 5 U.S.C. § 552a(g)(2)(A); Quinn v. Stone, 978 F.2d 126, 137 (3d Cir. 1992).

Jackson does not identify the “derogatory information,” but it appears that he seeks the 7 removal of references to the criminal charges that were pending against him when he

applied for the revenue agent job. According to Jackson, those charges were later

dismissed. The District Court concluded that Jackson was not entitled to expungement

because the records accurately reflected that his employment offer was rescinded based

on the fingerprint check. See Jackson, 267 F. Supp. 3d at 624. We agree. “[T]he

Privacy Act does not allow a court to alter records that accurately reflect an

administrative decision, or the opinions behind that administrative decision.” Reinbold v.

Evers, 187 F.3d 348, 361 (4th Cir. 1999). Although Jackson asserts that the “derogatory

information was not accessed or used, at all, prior to the … improper disqualification

decision made by defendant IRS,” he does not dispute that the information is accurate.

Under these circumstances, he is not entitled to expungement under the Privacy Act.

For the foregoing reasons, we will affirm the judgment of the District Court.

Appellees’ motion to summarily affirm is denied as moot.