United States Court of Appeals

For the First Circuit

No. 05-1820

GRAEME SEPHTON,

Plaintiff, Appellant,

v.

FEDERAL BUREAU OF INVESTIGATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

 Selya, Lipez, and Howard, Circuit Judges.

Daniel J. Stotter, with whom Bromley Newton, LLP, Robert

Wolkon, and Wolkon & Pascucci, LLP were on brief, for appellant.

Karen L. Goodwin, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief,

for appellee.

March 31, 2006
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HOWARD, Circuit Judge. In 1996, a passenger airliner

bound for Paris crashed in the Atlantic Ocean ten minutes after

departing from New York. All on board perished. Following an

investigation by multiple federal agencies, including the FBI, the

National Transportation Safety Board concluded that the probable

cause of the crash was an explosion in one of the fuel tanks. A

group of the victims' family members formed an unofficial

organization to conduct an independent investigation into the

crash. A member of that organization, Graeme Sephton, brought the

present action under the Freedom of Information Act (FOIA), 5

U.S.C. § 552, seeking records from the FBI concerning its

investigation. After almost five years of litigation and the

disclosure of nearly 600 pages of documents, the district court

concluded that the FBI had satisfied its obligation to conduct a

"reasonable" search for documents responsive to Sephton's FOIA

request, and accordingly granted it summary judgment. See Sephton

v. FBI, 365 F. Supp. 2d 91 (D. Mass. 2005). For substantially the

reasons offered by the district court, we affirm.

The district court's opinion provides a comprehensive

description of the lengthy procedural and factual history of this

case. See id. at 93-96. We therefore confine our narrative to the

essentials.

In September 1998, Sephton sent a letter to the FBI's New

York field office -- the office that had coordinated the FBI's
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investigation -- requesting a list of all foreign material removed

or recovered from the victims' bodies and the results of any

forensic analyses performed by the FBI on such materials. The FBI

initially located 21 pages of responsive documents, but it resisted

disclosure of those documents on the grounds that their disclosure

either would interfere with an ongoing investigation, see 5 U.S.C.

§ 552(b)(7)(A), or violate the secrecy of federal grand jury

proceedings, see id. § 552(b)(3). 

After exhausting his administrative remedies, Sephton

filed a federal action in July 2000 seeking disclosure of the

withheld documents and an injunction ordering the FBI to conduct a

thorough, good-faith search of its records for all documents

responsive to his request. The parties spent the next five years

litigating this case in the district court and in this court.

Along the way, the FBI relinquished the 21 pages of initially

withheld documents and conducted further searches yielding over 550

pages of additional documents that were subsequently delivered to

Sephton. The litigation proceeded, however, because Sephton

remained unconvinced that the FBI had conducted an adequate search.

By the time the district court issued its summary judgment ruling,

the FBI had submitted four affidavits attesting to and describing

its search for documents.

Scott Hodes, the Acting Unit Chief of the Litigation

Unit, Freedom of Information-Privacy Acts Section, Office of Public
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and Congressional Affairs, described the FBI's Central Records

System (CRS) and explained how it was searched to comply with

Sephton's request. Hodes's successor, Christine Kiefer, described

the main file concerning the 1996 crash and how that file,

containing 80,000 pages, was organized into 97 sub-files. She

stated that the FBI had reviewed the list of sub-files and had

identified one particular sub-file, containing over 2,000 pages, as

the likely repository of the records Sephton sought. She also

stated that a paralegal had searched this sub-file "page-by-page."

Eileen Rawlinson, supervisor of the Legal Unit of the Freedom of

Information-Privacy Acts Group in New York, explained how the FBI

had initially overlooked 550 pages of responsive documents that

were later provided to Sephton. She also described the FBI's

further search efforts, including a "line-by-line" review of the

previously identified sub-file as well as a review of certain

records located in other areas of the main file. The final

affidavit, from Gregory Carl, Unit Chief of the Explosive Unit,

Scientific Analysis Section, Laboratory Unit, rebutted certain

claims made in Sephton's summary judgment submissions. Carl stated

that the FBI Laboratory has not, since 1995, maintained any records

systems containing records not reflected in the CRS. 

The parties disputed before the district court whether

these affidavits established as a matter of law that the FBI had

adequately searched for documents responsive to Sephton's FOIA
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request. Applying our precedent, the district court recognized

that although Sephton might prefer the FBI to search every file

that might conceivably contain responsive information, FOIA

requires a "reasonable" search, not an exhaustive one. See Maynard

v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) ("The crucial issue is

not whether relevant documents might exist, but whether the

agency's search was reasonably calculated to discover the requested

documents.") (internal quotation marks omitted). The court

reviewed the four FBI affidavits and found that they collectively

describe, "in a detailed and nonconclusory fashion, the structure

of the agency's file system, the scope of the search performed, and

the method by which it was conducted." Sephton, 365 F. Supp. 2d at

97 (setting forth the Maynard standard for establishing the

adequacy of an agency's search at the summary judgment stage). The

court further found that Sephton's affidavits were insufficient to

rebut the presumption of good faith that FOIA attaches to agency

affidavits. Id. at 97, 100; see Maynard, 986 F.2d at 560 (holding

that when an agency seeks summary judgment based on reasonably

detailed affidavits establishing that it conducted a reasonably

thorough search, "the FOIA requester can rebut the agency's

affidavit[s] only by showing that the agency's search was not made

in good faith"). Concluding that the FBI's search had met the FOIA

standard, the court granted its motion for summary judgment.

Sephton, 365 F. Supp. 2d at 101. 
Because we agree that the FBI's affidavits establish that 1

copies of all potentially responsive documents -- including

documents originating from the FBI's Washington, D.C. offices --

would have been stored in the CRS and that the FBI adequately

searched the CRS, we need not consider Sephton's contention that

the FBI had an obligation to search offices other than its New York

office, the office to which the FOIA request was directed.

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On appeal, Sephton challenges the district court's ruling

that the FBI's search was adequate. Our review of this ruling is

de novo. See Church of Scientology Int'l v. U.S. Dep't of Justice,

30 F.3d 224, 228 (1994). Because we agree that the FOIA standard

was met, for largely the reasons expressed in the district court's

cogent opinion, we see no utility in replicating its sound analysis

here. See Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d

218, 220 (1st Cir. 1996) ("[W]hen a lower court produces a

comprehensive, well-reasoned decision, an appellate court should

refrain from writing at length to no other end than to hear its own

words resonate."). We write briefly, however, to address one 1

argument raised by Sephton on appeal that he did not raise before

the district court.

Sephton contends that, by operation of Fed. R. Civ. P.

8(d), the FBI's failure to file an answer to his FOIA complaint

amounts to an admission to all of the allegations contained in the

complaint, including the allegation that "the FBI acted in bad

faith when, in response to plaintiff Sephton's legitimate FOIA

request . . . it did not conduct an adequate search of its records

. . . ." The FBI counters that Sephton forfeited this argument by
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not raising it below. See B&T Masonry Constr. Co. v. Public Srv.

Mutual Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004).

The issue is foreit and does not call for an exercise of

our power to correct plain errors. See Chestnut v. City of Lowell,

305 F.3d 18, 20 (1st Cir. 2002) (en banc per curiam). At least two

other circuits have held that FOIA does not require an answer to

the complaint so long as the issues are otherwise joined, for

example, by the filing a dispositive motion. See Chilivis v.

Securities and Exchange Comm'n, 673 F.2d 1205, 1209 (11th Cir.

1982) (filing a motion to dismiss satisfies FOIA's requirement that

the agency file an answer or "otherwise plead"); Weber v. T.R.

Coney, 642 F.2d 91, 93-94 (5th Cir. 1981) (same with respect to a

motion for summary judgment). We needn't expressly adopt or reject

that proposition here; in light of the above precedent and the

language in the statute allowing an agency to "answer or otherwise

plead," 5 U.S.C. § 552(a)(4)(C), it was not plain error for the

district court to consider the issues joined upon the FBI's filing

of a motion for summary judgment.

Affirmed.