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 (WITH THE NOTATION ASUMMARY 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 24th 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.
       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-Appellees. McDonald brought this action under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking records from Defendants-

Appellees showing his “reinstatement” 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 during oral argument of his appeal in that case, Defendant-Appellee

Vagelatos had admitted that those records existed. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review an order granting summary judgment de novo. Ctr. for Constitutional Rights v.

CIA, 

, 166 (2d Cir. 2014). “In order to prevail 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, 

, 812 (2d Cir. 1994);

5 U.S.C. § 552(a)(4)(B). “Affidavits or declarations supplying facts indicating that the agency has

conducted a thorough search . . . are sufficient to sustain the agency’s burden.” 

(footnote omitted). “[A]n agency’s search need not be perfect, but rather need only be

reasonable.” Grand Cent. P’ship, Inc. v. Cuomo, 

, 489 (2d Cir. 1999). To establish

the adequacy of a search, “agency affidavits must be . . . relatively detailed and nonconclusory,

and . . . submitted in good faith.” 

(internal quotation marks omitted). Moreover,

affidavits submitted by an agency are “accorded a presumption of good faith.” 

(internal




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quotation marks omitted). This presumption “cannot be rebutted by purely speculative claims

about the existence and discoverability of other documents.” 

marks

omitted). Instead, “something more than . . . bare allegations is needed.” 

.

       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 Vagelatos, reviewing the oral argument recording, and seeking

clarification from McDonald about his request. McDonald failed to rebut that evidence with any

specific evidence showing that 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 statements 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 that there were records of such a nonexistent

reinstatement. And McDonald’s speculative arguments that the USPS should have created such

documents in response to an arbitrator’s decision are insufficient to rebut the presumption of good

faith that attaches to Defendants-Appellees’ affidavits. See Grand Cent. 

.

       Finally, although McDonald states that he is not attempting to relitigate his discrimination

claims, to the extent he does so, those claims are barred by the doctrine of res judicata, also known

as claim preclusion, which states that “a final judgment on the merits 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, 

, 157 (2d Cir. 2017) (internal quotation marks omitted).

       We have considered all of McDonald’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



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