2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-14-2013 

# Z effie S ur g ick v

. Acqua nett a C ir el l a
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 12-3475

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2013

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2013 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" Z effie S ur g ick v

. Ac qua ne tt a C ir e l l a " (2013). 2013 D e cisio n s . P a pe r 1384. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2013/1384DLD

- 084 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 1 2

- 3475

____________ ZEFFIE NETIA SURGICK; CORDEL I A JOHNSON

v. ACQUANETTA CIRELLA; ROSE SURGICK; K. HOVNANIAN ENTERPRISES, INC., C/O ACQUANE TTA CIRELLA [IN THE MATTER OF JAMES LESLIE SURGICK (DECEASED)]; INTERNAL REVENUE SERVICE Zeffie Surgick, Appellant

__________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 09

- cv - 0 3807 ) District Judge: Noel L. Hillman

__________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 10, 2013 Before: AMBRO, SMITH and CHAGARES, Circuit Judges (Opinion filed : January 14, 2013 )

_________________ OPINION

_________________ PER CURIAM Appellant Zeffie Surgick and Cordelia Johnson , now deceased , brought suit pro se against Acquanetta Cirella, Ro se Surgick, K

. Hovnanian Enterprises, Inc. , and the2 Internal Revenue Service (“ the Service ”) in the United States District Court for the District of New Jersey after Surgick unsuccessfully sought information directly from the Service , see 26 U.S.C. § 6103 ( e)

. Surgick and Johnson claimed that the defendants denied them access to tax records and other information relating to the estate of their father, James Leslie Surgick, and thereby violated their First Amendment and statutory rights to freedom of informa tion. In addition, they alleged that Cirella and Rose Surgick, in exercising power of attorney over the es tate, conspired to defraud them by concealing the value of the estate , in violation of New Jersey law

. 1 In an order filed on June 15, 2010, the Distr ict Court granted K. Hovnanian’s motion to dismiss and advised Surgick and Johnson to amend their complaint with respect to the Service

. K. Hovnanian had argued, and the District Court agreed, that, as a private corporation, it was not subject to the Free dom of Information or Privacy Acts, and it had no legal obligation to the plaintiffs to disclose its ta x records

. In August, 2010, Surgick and Johnson filed an amended complaint, alleging that the Service violated the Freedom of Information Act (“FOIA”) by withholding information pertaining to James Leslie Surgick and his estate , and his investment interests . In a June 19, 2011 Opinion, the District Court recognized that dismissal of the amended complaint should probably be granted to the extent th at the plaintiffs sought disclosure from the Service of K. Hovnanian ’ s tax information, but the c ourt was concerned about FOIA ’s segregation requirement. Additionally, the District C ourt recognized that representations made by the Service that its officials had conducted a reasonable investigation for the documents requested ; discovered that most of those

1 Zeffie Surgick, Cordelia Johnson, Rose Surgick and Acquanetta Cirella are fou r of James Leslie Surgick’s 12 children.3 documents were either destroyed or did not exist ; and had provided the documents it did have , should be presented in a motion for summary judgment.
In August , 2011, the Service moved for summary judgment, Fed. R. Civ. Pro. 56(a) , arguing that the p laintiffs d id not have a valid FOIA claim regarding the tax documents of James Leslie Surgick and his estate, and that it was entitled to summary judgment regarding the request for the tax return information for K. Hovnanian because K. Hovnanian had not consented to disclosure and because its tax records were exempt from disclosure. Cirella and Rose Surgick filed a motion to dismiss the amended complaint for lack of federal subject matter jurisdiction. In an order entered on March 29, 2012, the District Court gran ted summary judgment to the Service . After a careful review of the specific information requested and the Service ’s declarations and exhibits regarding its investigation and actions, and the response in opposition to the motion for summary judgment, the District Court determined that there was no triable issue with respect to whether the Service was improperly withholding information from the plaintiffs

. In a thorough opinion, t he District C ourt conclude d that the Service provided reasonable and sufficiently detailed declarations of two Disclosure Specialists , and that t h o se declarations established that all files likely to contain responsive materials were s earched . O fficials had followed up on the results of the searches by working with the Federal Records Center to locate any responsive documents , and the Service had provided the p laintiffs with the only responsive documents that were located . The Service had also p roperly advised the plaintiffs that the majority of the requests sought records which were destroyed in accordance with the Service ’ s record retention schedule, were nonexistent, or were never4 filed with the Service

. In addition, the District C ourt determined that summary judgment was proper on the plaintiffs’ requests regarding K. Hovnanian's tax information . T he plaintiffs had not obtained K. Hovnanian ’s consent to disclosure, and FOIA ’s segregation requirement d id not apply because the docum ents sought were fully exempt from disclosure and did not contain any non

- exempt information that the Service could segregate and disclose. In the margin, the court concluded that there was no need for a “Vaughn index.” See Surgick v. Cirella Because the FOIA claim was dismissed, and there thus was no longer a federal question, the District Court, in addition, sua sponte declined to exercise supplemental jurisdiction over the plaintiffs’ state law c laims and dismi ssed them without prejudice , 28 U.S.C. § 1367(c)(3) . However, because the plaintiffs were proceeding pro se, the District Court gave them one final opportunity to amend the complaint to allege a basis for diversity jurisdiction over defend ants Cirella and Rose Zurgick. , 2012 WL 10 67923 (D.N.J. March 29, 2012).

Surgick and Cordelia Johnson’s daughter Charlotte Surgick responded by fil ing an amended complaint, again claiming that Cirella and Rose Surgick denied them their rightful inheritance. 2 In an order entered on April 27, 2012, the District C ourt noted that ninety days had passed since the court was notified of Cordelia’s death, and the issue whether Charlotte could be substituted under Fed. R. Civ. Pro. 25(a)(1) had not been properly addressed in a substitution motion . Accordingly, the court dismissed Cordelia’s claims. 3

2 Cordelia Surgick died in November, 2011. The District Court then signaled its intention to dismiss Surgick’s amended

3 Rule 25(a)(1) provides: “ If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made b y any party or by the decedent ’ s successor or representative. If the motion is not made within5 complaint against Cirella and Rose Surgick on the basis of the probate exception to federal court jurisdiction , see generally Three Keys Ltd. v. SR Utility Holding Co.

Surgick , in response, moved to withdraw her amended complaint against Cirella and Ros e Surgick ; she also filed a notice of appeal on May 14, 2012, seeking review of the District Court’s March 29, 2012 order granting summary judgment to the Service

. We dismissed th e appeal on July 12, 2012 as premature , , 540 F.3d 220 (3d Cir. 2008)

. Surgick was given one more extension of twenty days in which to properly plead a basis for federal court jurisdiction.

see C.A. No. 12

- 2409, because Cirell a and Rose Surgick remained parties to the action and because the order appealed had not been certified by the District Court pursuant to Fed. R. Civ. Pro. 54(b). In an order entered on July 19, 2012, the District Court granted the motion to withdraw the amended complaint and finally dismissed the claims against Cirella and Rose Surgick, thereby bringing the case to a close . Surgick had sixty days from the date of this order in which to file a timely notice of appeal, see

Meanwhi le, on August 28, 2012, Surgick filed a petition for panel rehearing in ou r court in her jurisdictionally defective appeal , Fed. R. App. Pro. 4(a)(1)(B) (aut horizing 60

- day appeal period when United States is party). No notice of appeal was filed by September 17, 2012

. Instead, she filed a notice of appeal on October 16, 2012

.

see C.A. No. 12

- 2409, which we denied

. But she also mailed a copy of her rehearing petition to the District Court, where it was treated as a notice of appeal and filed on August 30, 2012 . It was forwarded to this Court, resulting in the instant appeal. Our Clerk granted Surgick leave to appeal in forma pauperis 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” and advised h er that the appeal was subject to summary dismissal under 286 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 a nd I.O.P. 10.6. The Service has moved to dismiss the appeal for lack of jurisdiction , and K. Hovnanian Enterprises has submitted a letter join ing in that motion . The Service argues that the notice of appeal filed on October 16, 2012 was not timely filed u nder appellate Rule 4, and the petition for rehearing which the Clerk of the District Court treated as a notice of appeal, although timely filed under Rule 4, should not be treated as a notice of appeal. In support, the Service argues that Surgick, althou gh appearing pro se , is not an unsophisticated litigant. When the jurisdictional defect in the appeal docketed at C.A.
No. 12

- 2409 was called to her attention, for example, she moved to withdraw the amended complaint against Cirella and Rose Surgick. Mor eover, Surgick knows the proper format for a notice of appeal, having previously filed one. Surgi ck has filed a motion to strike, in which she argues, in effect, that we should exercise jurisdiction in the instant appeal. Federal Rule of Appellate Procedu re 3(c) provides that a notice of appeal specify the party taking the appeal, designate the order being appealed, and name the court to which the appeal is taken. Fed. R. App. Pro. 3(c)(1)(A)

- (C). “Form 1 in the Appendix of Forms is a suggested notice of appeal.” See id. at Rule 3(c)(5). Without a doubt, Surgick’s petition for panel re hea ring does not conform to Form 1, but if a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal. Smith v. Barry , 502 U.S. 244, 248 (1992). The requirements of Rule 3 are to be construed liberally, but “Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Id. In7 Smith

Not surprisingly, Surgick’s petition for panel rehearing which was filed on the District Court do cket on August 30, 2012 as a notice of appeal references on page 1 Surgick’s existing appeal to our Court (without identifying the specific cou rt of appeals docket number), and indicates an intent to have review of the District Court’s order of March 29, 2 012

. On the second page of the petition , Surgick note s that her case became appealable upon entry of the District Court’s July 19, 2012 order dismissing the remaining claims against Cire lla and Rose Surgick, and she notes that she “now” appeals the order of the District Court denying her claim against the Service for disclosure of records. Under these circumstances, we conclude that Rule 3(c)(1) is satisfied, and that we have j urisdiction, 28 U.S.C. § 1291. , the Supreme Court hel d that an inmate’s informal brief, submitted in response to a briefing order, could qualify as a notice of appeal ; the case was remanded to the appeal s
court.

We will summarily affirm the District Court’s or der granting summary judgment in favor of the Service and against Zeffie Surgick. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no substantial question is presented by the appeal. Summary judgment is appropriate where the moving party shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Although the initial burden is on t he moving party to show the absence of a genuine issue of material fact, the burden on the moving party may be discharged by showing t hat there is an absence of evidence to support the nonmoving party ’s case. See id. at 325. Thus, to withstand a properly supported motion for summary judgment, the8 nonmoving party must identify specific facts and affirmative evidence that contradict that which is offered by the moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 257 (1986)

. A party opposing summa ry judgment must do more than just rest upon mere allegations

. See Saldana v. Kmart Corp. A District Court may order the production of documents pursuant to FOIA, 5 U.S.C. § 552(a)(4)(B), where (1) the requested documen ts are agency records; (2) the records have been withheld by the agency; and (3) the withholdi ng was improper. , 260 F.3d 228, 232 (3d Cir. 2001).

See Coastal States Gas Corp. v. Dep’t of Energy , 644 F.2d 969, 974 (3d Cir. 1981)

. The agency has a duty to conduct a reasonable search for res ponsive records. See Abdelfattah v. U.S. Dep’t of Homeland Sec. , 488 F.3d 178, 182 ( 3d Cir. 2007)

. To establish for summary judgment purposes 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.” Oglesby v. U.S. Dep’t of Army With respect to James Leslie Surgick and his estate, the p laintiffs sought tax returns and records for numerous years. Based on the record in this case, the Service established that it complied with its duty to conduct an adequate search of its Integrated Data Retrieval System and to turn over all responsive doc uments in its possession. Surgick failed to identify specific facts and affirmative evidence to contradict the evidence offered by the Service in support of its argument that it s search was adequate and it was not improperly withholding documents. Thus, summary judgment was proper

. , 920 F.2d 57, 68 (D.C. Cir. 1990 ).

With respect to K. Hovnanian, the plaintiffs sought corporate tax returns and information concerning James Leslie Surgick’s interests in the corporation. Pursuant to9 FOIA e xemption 3 , 5 U.S.C. § 552(b)(3), and the tax code, 26 U.S.C § 6103 (e) (1) , the Service is prohibited from releasing K. Hovnanian ’ s tax information to the p laintiffs without K. Hovnani an’s consent, which the plaintiffs did not obtain. S ection 6103 (e) (1)(A)

- (F) prohibits the disclosure of third

- party tax ret urn information , and subparagraph (b)(2) broadly defines “return information” to include a “ taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability , tax withheld, deficiencies, over assessments, or tax payments

... , ” id. at 6103(b)(2). Accordingly, summary judgment was proper here as well. FOIA ’s segregation requirement , 5 U.S.C. § 552(b) (unnumbered paragraph) (any “reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection”), is not applicable because the Service established that the information requested is exempt from disclosure , and establi shed that there was no form of non

- exempt information in the documents requested which the Service could segregate and legally disclose to the p laintiffs. See Church of Scientology v. Internal Revenue Serv. , 484 U.S. 9, 16 (1987) (“Congress did not intend [ s ection 6103] to allow the disclosure of otherwise confidential return information merely by the redaction of identifying details.”)

. A “Vaughn index,” see Vaughn v. Rosen

For the foregoing reasons, the order of the District Court granting summary judgment to the Internal Revenue Service and against Zeffie Surgick on her FOIA claim is summarily affirmed

. The Service’s and K. Hov nanian’s motions to dismiss for lack of , 484 F.2d 820 (D.C. Cir. 1973), was unnecessary because the information sought pl ainly was confidential taxpayer information.10 appellate jurisdiction are denied. Surgick’s motion to strike is denied as stated but has been considered as a jurisdictional response.