JACKSON v. U.S. GENERAL SERVICES ADMINISTRATION et al

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 7/25/2017. 7/26/2017 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
MARK JACKSON,
:
Plaintiff,
:
:
v.
:
:
UNITED STATES GENERAL
:
SERVICES ADMINSTRATION, et al.,
:
Defendants.
:
_________________________________________ :

CIVIL ACTION NO. 16-5253

Memorandum Opinion
Rufe, J.

July 25, 2017

Before the Court is the Motion for Summary Judgment of Defendants U.S. Department of
the Treasury and U.S. General Services Administration (“GSA”). For the reasons that follow,
the motion will be granted, as there are no material factual disputes regarding Plaintiff Mark
Jackson’s claim, and Defendants have put forward compelling evidence and arguments that they
are entitled to judgment as a matter of law.
I. BACKGROUND
This case concerns the Government’s purported failure to provide Plaintiff with requested
documents pursuant to the Freedom of Information Act (“FOIA”) and the Privacy Act. 1 The
following facts are undisputed. On July 17, 2012, Plaintiff was informed that he had been
selected for an Internal Revenue Agent position with the Internal Revenue Service (“IRS”), and
he accepted the job offer contingent upon a tax check and an FBI fingerprint check.2 On August
15, 2012, Plaintiff was notified that the IRS withdrew its offer because the fingerprint check

1

Doc. No. 1 (Complaint); 5 U.S.C. § 552; 5 U.S.C. § 552a.

2

Id. ¶¶ 7, 15.

revealed pending criminal charges against Plaintiff.3 On July 6, 2016, Plaintiff submitted
document requests to GSA under FOIA and the Privacy Act, and on July 11, 2016, Plaintiff
submitted similar requests to the IRS.4 Defendants responded to the requests without claiming
any exemptions and produced 174 pages of documents from several IRS databases and the
USAccess database maintained by GSA.5 Plaintiff then filed this suit pro se, alleging that
Defendants improperly withheld documents in violation of FOIA and the Privacy Act.
Defendants now move for summary judgment.
II. LEGAL STANDARD
A. Summary Judgment Standard
A court will grant summary judgment where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”6 A dispute is “genuine”
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,”
and a fact is material only when it “might affect the outcome of the suit.”7
In evaluating a summary judgment motion, a court “must view the facts in the light most
favorable to the non-moving party” and make every reasonable inference in that party’s favor.8
Further, “a court may not weigh the evidence or make credibility determinations.”9
Nevertheless, the party opposing summary judgment must support each essential element of the

3

Id. ¶ 23. All pending charges against Plaintiff were abandoned on November 6, 2013, and the charges were
expunged on March 27, 2014. Id. ¶¶ 28-29.
4

Id. ¶¶ 32-33.

5

Doc. No. 9-2 (Motion for Summary Judgment) at 2. Plaintiff noted that Defendants failed to file a timely response
to the complaint without offering an explanation or seeking an extension from the Court. However, Plaintiff did not
identify any prejudice from Defendants’ delayed Answer. Doc. No. 18 (Response to MSJ) at 7 & n.6.
6

Fed. R. Civ. P. 56(a).

7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); id. at 247.

8

Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

9

Boyle v. Cty. Of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).

2

opposition with concrete evidence in the record.10 “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”11 This requirement upholds the
“underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it
is unnecessary and would only cause delay and expense.”12 Therefore, if the court determines
that there is no genuine dispute as to any material fact after making all reasonable inferences in
favor of the non-moving party, summary judgment is appropriate.13
B. FOIA Claim
To prevail on a summary judgment motion in a FOIA case, an agency “must show that its
search was reasonably calculated to uncover relevant documents.”14 The search “must be
adequate enough to reasonably assure that all files likely to contain the requested information
have been searched.”15 The inquiry into the adequacy of the search begins with the
“presumption that the agency affidavits and the related search were made in good faith.”16 For
the plaintiff to rebut such a presumption, “more than purely speculative claims about the
existence and discoverability of documents” must be presented, since “[s]peculation that

10

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

11

Anderson, 477 U.S. at 249-50 (internal citations omitted).

12

Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson &
Co., 534 F.2d 566, 573 (3d Cir. 1976)).
13

Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987). Although pro se plaintiffs are afforded
greater leeway than represented parties, “[c]onclusory statements in affidavits about the existence of facts do not
provide the kind of evidence required to successfully oppose summary judgment.” Astree v. U.S. Dep’t of Justice,
Bureau of Prisons, No. Civ. A. 98-118, 1999 WL 94621, at *15 (E.D. Pa. Jan. 8, 1999) (quoting Pearson v. Vaughn,
984 F. Supp. 315, 316 (E.D. Pa. 1997)). Instead, Plaintiff “must provide or point out some affirmative evidence in
the record that substantiates his claim . . . [and] cannot resist summary judgment based on [] bare assertion[s.]” Id.
(quoting Pearson, 984 F. Supp. at 316).
14

Cozen O’Connor v. U.S. Dep’t. of Treasury, 570 F. Supp. 2d 749, 766 (E.D. Pa. 2008).

15

Id. (citing Morley v. C.I.A., 508 F.3d 1108, 1120-21 (D.C. Cir. 2007).

16

Cozen O’Connor, 570 F. Supp. 2d at 766.

3

uncovered documents may exist is insufficient to show that the agency’s search was
unreasonable.”17
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.’”18
The adequacy of an agency’s search can be demonstrated 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.’”19 The adequacy of a search
“focuses on the appropriateness of the search methods used and not on what the search produces
or does not produce.”20 To demonstrate adequacy, “the agency’s affidavit must (1) contain
reasonable detail; (2) set forth the search terms used; (3) describe the type of search performed;
and (4) confirm that all files likely to contain responsive material were searched.”21 The “failure
to turn up [a specified] document does not alone render the search inadequate,”22 since a search
“need not be exhaustive.”23 The Court may award summary judgment “on the basis of agency
affidavits alone where the affidavits are sufficiently detailed and in good faith.”24

17

Id.

18

Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (quoting Weisberg v. U.S. Dep’t of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
19

Id. (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)).

20

Cozen O’Connor, 570 F. Supp. 2d at 766 (citing Iturralde v. Comptroller of the Currency, 315 F.3d 311, 314
(D.C. Cir. 2003)).
21

Id. (citations omitted).

22

Lechliter v. Rumsfeld, 182 F. App’x 113, 116 (3d Cir. 2006) (quoting Nation Magazine v. U.S. Customs Serv., 71
F.3d 885, 892 n.7 (D.C. Cir. 1995)) (alteration in original).
23

Cozen O’Connor, 570 F. Supp. 2d at 766.

24

Berger v. I.R.S., 487 F. Supp. 2d 482, 493 (D.N.J. 2007) (citation omitted), aff’d, 288 F. App’x 829 (3d Cir.
2008).

4

C. The Privacy Act Claim
The Privacy Act requires that federal agencies “upon request by any individual to gain
access to his record or to any information pertaining to him which is contained in the system,
permit him . . . to review the record and have a copy made of all or any portion thereof in a form
comprehensible to him . . . .”25 The inquiry under FOIA and the Privacy Act is essentially the
same: “whether the agency conducted a reasonable search for responsive records.”26
III.

ANALYSIS
Because Defendants do not claim that any FOIA exemptions apply or otherwise argue

that they are not required to produce the requested documents, this dispute revolves around the
adequacy of Defendants’ searches. Defendants argue that they are entitled to summary judgment
because they have conducted a series of reasonable searches and produced responsive
documents, satisfying their obligations under FOIA and the Privacy Act.
A. FOIA
Defendants have satisfied their burden of showing that they conducted adequate searches
by submitting detailed affidavits describing the search process. Specifically, Defendants have
provided declarations from Athena Amparano, a Government Information Specialist at the IRS,
and Stephen Sill, the Director for the USAccess’s Managed Service Office within the GSA,
explaining the search process, the personnel involved, and the information found.27 Defendants
also provided a chart showing Plaintiff’s eleven FOIA requests, the IRS’s responsive actions,
and the documents that the IRS was able to locate.28 Defendants’ affidavits and supporting
25

5 U.S.C. § 552a(d)(1).

26

Wright v. Potter, 333 Fed. App’x 690, 692 (3d Cir. 2009) (citing Abdelfattah, 488 F.3d at 182).

27

Doc. No. 21-1 (Reply), Ex. 1 (Supp. Decl. of Athena Amparano); Doc. No. 21-2, Ex. 2 (Supp. Decl. of Stephen
Sill).
28

Doc. No. 9-2 at 2-3.

5

materials are sufficiently detailed to warrant a presumption of good faith and demonstrate that
Defendants’ searches were adequate.
In response, Plaintiff raises at least four objections, none of which is persuasive. Plaintiff
first argues that Defendants’ descriptions of their searches were inadequate because Defendants
did not specify the locations searched or state explicitly that “all files likely to contain responsive
materials” were searched.29 As the searches were electronic, Defendants were not required to
specify a physical location, and Defendants’ affidavits provided ample details of the electronic
searches, which is sufficient to comply with the statute’s requirements.30
Plaintiff also questions the qualifications of Defendants’ declarants, arguing that other,
unspecified individuals also should have submitted declarations. Ms. Amparano is a
Government Information Specialist whose job is to coordinate search efforts in response to FOIA
requests such as the one at issue here.31 Ms. Amparano was thus qualified to describe the IRS’s
search procedures, and Defendants were not required to provide a declaration from every
individual involved in the search.32
Next, Plaintiff argues that Defendants failed to search various databases that he believes
contain responsive documents. But “[t]here is no requirement that an agency search every record
system.”33 And in fact, most of the locations identified by Plaintiff were searched—Defendants’
affidavits explain that Defendants conducted supplemental searches in response to Plaintiff’s
29

Doc. No. 21 at 3 (citing Doc. No. 18-1 at 5-8).

30

Doc. No. 18-1 at 6; Doc. No. 21 at 3, 7 n.2; Doc. No. 21-1, Ex. 1; Doc. No. 21-2, Ex. 2 (explaining search
process). Relatedly, Plaintiff agues the Defendants failed to specify how four pages of documents were identified.
Doc. No. 18-1 at 15. To the extent that this evidenced a deficiency at all, Defendants remedied it by submitting a
supplemental affidavit from Mr. Sill explaining how the documents were located and produced. Doc. No. 21 at 6;
Doc. No. 21-2, Ex. B ¶ 3.
31

Doc. No. 21 at 4.

32

See Lechliter, 182 F. App’x at 116 (finding “no merit” to plaintiff’s contention that detailed affidavits describing
search efforts were not adequate under FOIA, and that the number of affidavits was insufficient).
33

See Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

6

criticisms, and most came up short. For example, Defendants searched the Security Entry and
Tracking System (“SETS”), GovTrip files/databases, SmartPay files/databases, and the IRS’s
Automated Background Information System (all identified by Plaintiff), and these searches
yielded only a few documents, all of which were produced.34 Rather than reveal any deficiencies
with the search process, Defendants’ ongoing efforts to respond to Plaintiff’s concerns establish
that Defendants’ searches were reasonable and conducted in good faith.35
Finally, Plaintiff argues that Defendants’ searches were deficient because they did not
produce certain documents that he expected. However, a “failure to turn up [a specified]
document does not alone render the search inadequate.”36 And in response to this concern,
Defendants again ran supplemental searches, evidencing their good faith.37 That Defendants did
not locate a few specific documents does not make the searches unreasonable.
In short, Defendants have established as a matter of law that their searches were adequate
and undertaken in good faith. Plaintiff has failed to rebut this showing. Summary judgment will
thus be entered in favor of Defendants on Plaintiff’s FOIA claim.

34

Doc. No. 18-1 at 13-14; Doc. No. 21 at 4-5. Specifically, the SETS search uncovered nothing, the GovTrip search
produced a single authorization for the Plaintiff to travel in 2012 but did not produce a corresponding voucher, the
SmartPay system search produced three pages of documents that were provided to Plaintiff, and the “vast majority”
of the Automated Background System folders were either empty or contained only information that had already
been produced. Id.; Doc. No. 21 at 5.
35

See W. Ctr. For Journalism v. IRS, 116 F. Supp. 2d 1, 10 (D.D.C. 2000) (explaining that “under the FOIA, it is
unreasonable to expect even the most exhaustive search to uncover every responsive file; what is expected of a lawabiding agency is that the agency admit and correct error when error is revealed”).
36

Lechliter, 182 F. App’x at 116 (citation omitted).

37

Specifically, Plaintiff argues that the second page of his “Consent for Fingerprint Check” form was missing. Doc.
No. 21 at 5-6; Doc. No. 21-1, Ex. 1 ¶¶ 6-7. This document was never found, despite supplemental searches, but
there is no evidence that this was the result of bad faith or deficient search efforts. Doc. No. 21-1, Ex. 1 ¶ 7.
Plaintiff also argues that Defendants failed to search for his “Electronic Questionnaire for Investigation Processing”
record, but this record was apparently canceled or deleted once Plaintiff’s job offer was rescinded, so there was no
need to search for it. Doc. No. 9-3, Ex. A at 5, n.3.

7

B. Privacy Act
Plaintiff’s Privacy Act claim is largely duplicative of his FOIA claim and fails for similar
reasons. Plaintiff’s primary argument is that Defendants have not shown that their searches were
“conducted pursuant to the Privacy Act,” as opposed to FOIA.38 But the standard under both
statutes is essentially the same, and as explained above, Defendants have shown they conducted
a reasonable search in response to Plaintiff’s requests. Defendants also clarified in their reply
brief that the search was “not limited in any way on the basis of whether the request was made
under FOIA and/or the Privacy Act.”39 The search thus complied with the Privacy Act.
Plaintiff also requests that Defendants expunge “all records or information maintained by
the IRS and GSA that is inaccurate and/or derogatory to Plaintiff.”40 However, “the Privacy Act
does not allow a court to alter records that accurately reflect an administrative decision, nor the
opinion behind that administrative decision, no matter how contestable the conclusions may
be.”41 Thus, Plaintiff is not entitled to expungement of records that accurately reflect that his
employment offer was rescinded because of the fingerprint check, even though the criminal
charges revealed by the fingerprint check proved erroneous. Summary judgment will be entered
in favor of Defendants on this claim as well.
IV.

CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment will be

granted. An appropriate Order will be entered.

38

Doc. No. 18-1 at 18.

39

Doc. No. 21 at 6-7.

40

Doc. No. 1 at 17.

41

Reinbold v. Evers, 187 F.3d 348, 360 (4th Cir. 1999); see also Sydnor v. Off. of Pers. Mgmt., No. 08-3099, 336 F.
App’x 175, 180 (3d Cir. 2009) (holding that plaintiff failed to state a claim under the Privacy Act where he sought to
have his federal employment records changed).

8