Maxine Russell v. United States Department of State; United States Federal Bureau of Investigation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAXINE RUSSELL,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF
STATE; UNITED STATES FEDERAL
BUREAU OF INVESTIGATION,
Defendants-Appellees.
No. 14-56046
D.C. No. 2:09-cv-06050-PSG-SS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted June 6, 2016**
Pasadena, California
Before: GOULD, MELLOY***, and HURWITZ, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S. Court of
Appeals for the Eighth Circuit, sitting by designation.
FILED
JUN 8 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Maxine Russell filed three requests under the Freedom of Information Act, 5
U.S.C. § 552 (“FOIA”), seeking records relating to her son’s death in China. The
State Department (the “Department”) disclosed some records and withheld others,
citing various FOIA exemptions. Russell sued, challenging both the withholding
and the adequacy of the Department’s search. The district court granted summary
judgment to Russell on one FOIA exemption and to the Department on the remaining
FOIA exemptions and the adequacy of the search. This appeal challenges only the
adequacy finding. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
1. Russell argues that the district court erred in admitting the declarations of
the successive heads of the Department FOIA office, because the declarations
contained hearsay and were not entirely based on personal knowledge. But, “‘an
affidavit from an agency employee responsible for supervising a FOIA search is all
that is needed to satisfy’ the personal knowledge requirement of Federal Rule of
Civil Procedure 56.” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 990 (9th Cir.
2009) (alteration omitted) (quoting Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814
(2d Cir. 1994)). Russell asks us to overrule Lahr, but a three-judge panel cannot do
so without intervening Supreme Court authority. Avagyan v. Holder, 646 F.3d 672,
677 (9th Cir. 2011).
2. Russell next argues that, at most, Lahr allows an official to testify about a
FOIA search she directly supervised, and that the declarants were too far removed

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from the searches at issue. But, nothing in Lahr or its sister cases supports that rule.
Lahr requires only that the affiant be “responsible for supervising” the search, 569
F.3d at 990, and the affiant in Lahr does not appear to have directly supervised all
of the searches at issue, see id. at 986. Our sister Circuits similarly require only that
the agency submit declarations from the “responsible agency officials” who are best
positioned to submit a “comprehensive” declaration. See Maynard v. CIA, 986 F.2d
547, 560 (1st Cir. 1993); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.
Cir. 1991).
3. Finally, Russell contends that the district court abused its discretion by
denying her request for discovery to determine if one of the declarants “had
sufficient personal knowledge of the matters set forth in her declaration regarding
her agency’s search.” This argument necessarily falls in light of Lahr.
AFFIRMED.

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