18-3402 McDonald v. Barr 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24 th day of January, two thousand twenty.
PRESENT: ROBERT A. KATZMANN, Chief Judge, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges.

_____________________________________ Cornelio D. McDonald, Plaintiff-Appellant ,

v. 18-3402-cv William P. Barr, United States Attorney General, John Vagelatos, Assistant United States Attorney, Defendants-Appellees

.

_____________________________________ FOR PLAINTIFF-APPELLANT: Cornelio D. McDonald, pro se , Fresh Meadows, NY.
FOR DEFENDANTS-APPELLEES: Varuni Nelson, Kathleen Anne Mahoney, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Dearie, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Cornelio D. McDonald, proceeding pro se , appeals the district court’s grant of summary judgment to Defendants-Appe llees. McDonald brought this action under the Freedom of Information Act (“FOIA”), 5 U. S.C. § 552, seeking records from DefendantsAppellees showing his “r einstatement” to his job with his former employer, the United States Postal Service (“USPS”). McDonald had previously sued the USPS for employment discrimination and asserts that duri ng oral argument of his appeal in that case, Defendant-Appellee Vagelatos had admitted that those records existe d. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. We review an order granti ng summary judgment de novo. Ctr. for Constitutional Rights v.
CIA , 765 F.3d 161, 166 (2d Cir. 2014). “In order to pr evail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search [for requested documents] was adequate.” Carney v. U.S. Dep’t of Justice , 19 F.3d 807, 812 (2d Cir. 1994); 5 U.S.C. § 552(a)(4)(B). “Affidavits or declaratio ns supplying facts indicat ing that the agency has conducted a thorough search . . . are suffici ent to sustain the agency’s burden.” Carney , 19 F.3d at 812 (footnote omitted). “[A]n agency’s search n eed not be perfect, but rather need only be reasonable.” Grand Cent. P’ship, Inc. v. Cuomo , 166 F.3d 473, 489 (2d Cir. 1999). To establish the adequacy of a search, “agency affidavits must be . . . rela tively detailed and nonconclusory, and . . . submitte d in good faith.” Id. at 488-89 (internal quotati on marks omitted). Moreover, affidavits submitted by an agency are “accorded a presumption of good faith.” Id. at 489 (internal3 quotation marks omitted). This presumption “ca nnot be rebutted by purely speculative claims about the existence and discovera bility of other documents.” Id. (internal quotation marks omitted). Instead, “something more than . . . bare allegations is needed.” Carney , 19 F.3d at 813. The affidavits submitted by Defendants-Appellees in the district court show that the U.S. Attorney’s Office conducted a reasonable search for documents responsive to McDonald’s request, including by contacting Vagela tos, reviewing the oral argu ment recordi ng, and seeking clarification from McDonald about his request. McDonald failed to rebut that evidence with any specific evidence showing th at the documents he sought existed or that the defendants acted in bad faith. Instead, to support his claim that the documents exist, McDonald relied solely on his apparent misunderstanding of Vagelatos’s stat ements at oral argument, and his speculation that USPS must have created such documents. But Vagelatos clearly stated that McDonald was not reinstated to work at USPS and nowhere stated or implied th at there were records of such a nonexistent reinstatement. And McDonald’s speculative argu ments that the USPS should have created such documents in response to an arbitrator’s decision are insufficient to rebu t the presumption of good faith that attaches to Defe ndants-Appellees’ affidavits. See Grand Cent. P’ship , 166 F.3d at 489. Finally, although McDonald states that he is not attempting to relitigate his discrimination claims, to the extent he does so, t hose claims are barred by the doctrine of res judicata , also known as claim preclusion, which states that “a final judgment on the mer its of an action precludes the parties . . . from relitigating issues that were or could have been raised in that action.” Brown Media Corp. v. K&L Gates, LLP , 854 F.3d 150, 157 (2d Cir. 2017) (int ernal quotation marks omitted). We have considered all of Mc Donald’s remaining arguments and find in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court