Iturralde v. Comptroller of Currency

• Decision Date: 17 January 2003
• Docket Number: No. 01-5367.,01-5367.
• Citation: 315 F.3d 311
• Parties: Guillermo Felipe Dueñas ITURRALDE, Appellant, v. COMPTROLLER OF THE CURRENCY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

315 F.3d 311

Guillermo Felipe Dueñas ITURRALDE, Appellant, v. COMPTROLLER OF THE CURRENCY, et al., Appellees.

No. 01-5367.

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 2002.

Decided January 17, 2003.

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Appeal from the United States District Court for the District of Columbia (No. 97cv01519).

Jonathan Cohen argued the cause for appellant. With him on the briefs were Alexander E. Eagleton and Herbert E. Milstein.

Peter D. Blumberg, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Heather J. Kelly, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Guillermo Felipe Dueñas Iturralde appeals the grant of summary judgment to the State Department on Dueñas's claim that it failed to conduct an adequate search for documents that he requested under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Because Dueñas did not preserve a challenge to the sufficiency of the Department's affidavit and, in attacking the adequacy of the Department's search, has not presented evidence that would tend to show that a particular document was in the Department's files, we affirm.

I.

Dueñas is a retired Ecuadorean admiral who was an executive of Banco de los Andes and of Banco de los Andes International, banks that operate in Ecuador and the Caribbean island of Montserrat, respectively. When he sought to purchase a bank in the United States, his application was rejected by the Office of the Comptroller of the Currency because Dueñas had allegedly not been truthful in revealing that Banco de los Andes International was under investigation for money laundering. Dueñas subsequently filed a request under the FOIA for all information relating to him and Banco de los Andes in possession of the Comptroller, the Drug Enforcement Administration ("DEA"), and, as later clarified, the State Department. Dissatisfied with the responses that he received, Dueñas filed suit in the United States District Court.

After the agencies had produced additional documents, the district court granted summary judgment, concluding that the agencies had properly withheld certain documents under the FOIA exemptions and that the searches for documents had been adequate. Dueñas did not appeal the grant of summary judgment to the Comptroller and the DEA. In an unpublished order, this court summarily affirmed summary judgment with respect to the State Department's invocation of various exemptions to justify withholding documents. Thus, the only issue in this appeal is Dueñas's contention that the State Department did not conduct an adequate search for various records.

II.

Our review of the district court's grant of summary judgment is de novo. Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999). At the summary judgment stage, the agency has the burden of showing that it complied with the FOIA, id., and in response to a challenge to the adequacy of its search for requested records the agency may meet its burden 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." Id. (quoting Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990)). The plaintiff may then provide "countervailing evidence" as to the adequacy of the agency's search. Founding Church of Scientology of Washington, D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 836 (D.C.Cir.1979). "[I]f a review of the record raises substantial doubt, particularly in view of `well defined requests and positive indications of overlooked materials,' summary judgment is inappropriate." Valencia-Lucena, 180 F.3d at 326 (quoting Founding Church of Scientology, 610 F.2d at 837) (citation omitted).

Dueñas contends that the State Department's search was inadequate for two reasons: First, the search was inadequate because the Department concluded that there were no documents responsive to his FOIA request in the Bureau of International Narcotics and Law Enforcement Affairs, even though the Bureau had published in 1993 an International Narcotics Strategy Report ("1993 Report") that claimed that Banco de los Andes was involved in money laundering; Dueñas attached the relevant pages of the report to one of his requests to the Department. Second, the search was inadequate because the Department initially delayed its search for documents.

In addressing Dueñas's contentions the court is not presented with a properly preserved challenge to the adequacy of the State Department's affidavit. At oral argument in this court Dueñas challenged the sufficiency of the affidavit, which stated conclusorily that the Department had informed Dueñas by letter that a search of the files of the Bureau of International Narcotics and Law Enforcement Affairs had been conducted, referencing several letters to Dueñas. As Dueñas pointed out in oral argument, at no point does the affidavit state under oath that a search of the files of the Bureau of International Narcotics and Law Enforcement Affairs was conducted or describe the nature of that search. Whatever deficiencies may exist in this affidavit, see Valencia-Lucena, 180 F.3d at 326; Weisberg v. United States Dep't of Justice, 627 F.2d 365, 370 (D.C.Cir.1980), however, Dueñas never challenged the sufficiency of the affidavit in the district court. Consequently, any challenge to the adequacy of the Department's affidavit is not properly before this court. Nat'l Rifle Ass'n of Am. v. FEC, 854 F.2d 1330, 1336-37 (D.C.Cir. 1988); Tarpley v. Greene, 684 F.2d 1, 7 n. 17 (D.C.Cir.1982). Moreover, Dueñas's briefs on appeal state only that the affidavit was conclusory, without further argumentation or further elaboration; this is the type of "asserted but unanalyzed" contention that is insufficient to preserve the issue on appeal even if he had raised it in the district court. See SEC v. Banner Fund Int'l, 211 F.3d 602, 613 (D.C.Cir. 2000) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983)). We therefore treat the affidavit as sufficient. Again, the only question on appeal is whether Dueñas has provided sufficient evidence to raise "substantial doubt" concerning the adequacy of the Department's search. See Valencia-Lucena, 180 F.3d at 326.

Dueñas maintains that the State Department initially denied that it had any responsive documents in its files, and that this denial (later proven false) shows that the Department's search was inadequate. However, the record reveals that the Department's first response to Dueñas's FOIA request was to send a form letter advising Dueñas to seek the materials from the Comptroller and the DEA. Apparently the Department read his FOIA request only to seek records from the Comptroller and the DEA, a reasonable conclusion given Dueñas's initial letter to the State Department; only later did he clarify to the Department that he was also asking it to search its own records. Once Dueñas responded by letter with a more specific request, referring to the 1993 Report, the Department began its search. In these circumstances we conclude that there is no evidence of bad faith by the Department, particularly in view of the fact that initial delays in responding to a FOIA request are rarely, if ever, grounds for discrediting later affidavits by the agency. See, e.g., Meeropol v. Meese, 790 F.2d 942, 952 (D.C.Cir.1986); Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 772 (D.C.Cir.1981).

Dueñas maintains further that the inadequacy of the search is obvious in light of the fact that the Department failed to find the 1993 Report...