898 F. 2d 156 - Mahdavi v. Central Intelligence Agency

MEMORANDUM**

Kamal Baradaran Mahdavi sued the Central Intelligence Agency ("C.I.A.") under the Freedom of Information Act ("FOIA") and the Privacy Act, 5 U.S.C. Secs. 552(a)(4)(B) and 552a(g)(1)(B), for information pertaining to him in C.I.A. records. Mahdavi filed two motions to recuse Judge Jensen, which were denied. The district court also granted the C.I.A.'s motion for summary judgment based on two affidavits filed by two C.I.A. employees. The affidavits stated that unsuccessful searches for the requested information had been conducted. Mahdavi raises three contentions. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

Mahdavi contends that the district court failed to randomly assign his case by reassigning his case from Judge Schwarzer to Judge Jensen in violation of Loc.R. 205-1. However, under Loc.R. 205-2, if a case is related to an earlier filed case, counsel shall file notice to that effect. Cases are related when they involve "the same parties and are based on the same or similar claims." Loc.R. 205-2(b)(i). If the judge certifies that the present case and the "earliest filed case" are related, the present case is assigned to the judge "to whom the earliest filed case is assigned." Loc.R., App.B, F1.

Here, in accord with the Local Rules, the government filed notice that an earlier related case involving the same parties and claims was decided by Judge Jensen. Judge Jensen then certified the two cases as related. See id. Therefore, because the two cases are related, reassignment of the present case to Judge Jensen was proper under Loc.R., App.B, F1.

Mahdavi contends that his motions to recuse Judge Jensen under 28 U.S.C. Secs. 144 and 455(a) were improperly denied. We review the denial of Mahdavi's motions for abuse of discretion. United States v. Probst, 792 F.2d 111, 113 (8th Cir.1986)

Under both sections 455(a) and 144, a litigant who contends that a judge is biased must show that the bias is (1) personal, and (2) extra-judicial. United States v. Carnigan, 600 F.2d 762, 763 (9th Cir.1979). A judge's participation in an earlier proceeding resulting in "a prior adverse ruling by a judge does not show the judge to be biased." Partington v. Gedan, 880 F.2d 116, 133 (9th Cir.1989) (Noonan, J., concurring). Although a judge may recuse himself under Loc.R. 205-3, recusal is required only if the judge determines that the affidavit of bias is sufficient. United States v. Azhocar, 581 F.2d 735, 738 (9th Cir.1978).

Here, Mahdavi contended in both motions for recusal that Judge Jensen was biased because he was an agent for the C.I.A. Judge Jensen denied he was biased against Mahdavi and also denied he was an agent for the C.I.A. Because Mahdavi's declarations of bias against Judge Jensen were insufficient, Judge Jensen did not err by refusing to recuse himself. See Azhocar, 581 F.2d at 738.

Mahdavi contends that the district court erred by granting summary judgment in favor of the C.I.A. because there is a material issue of fact regarding the adequacy of the C.I.A.'s information searches. We review a district court's grant of summary judgment de novo. Baker v. Department of the Navy, 814 F.2d 1381, 1382 (9th Cir.1987).

Summary judgment is proper if there is no issue of any material fact and the moving party has demonstrated the right to judgment as a matter of law. Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th Cir.1981). A material issue of fact is an issue gleaned from "the pleadings, depositions, affidavits, and other material permitted by Rule 56(c) ... which affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." Admiralty Fund v. Hugh Johnson & Company, 677 F.2d 1301, 1306 (9th Cir.1982). If the nonmoving party meets its initial burden of proof showing the absence of any genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985), the burden of proof shifts to the nonmoving party, who must demonstrate the existence of a material issue of fact and "may not rely on the mere allegations in the pleadings in order to preclude summary judgment." T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987). To defeat a motion for summary judgment, the nonmoving party must set forth "specific facts" which support his position. In re R & T Roofing Structures, No. 87-2985, slip op. 527, 543 (9th Cir. January 18, 1990); T.W. Elec. Service, 809 F.2d at 630.

Under either the Freedom of Information Act or the Privacy Act, a party requesting information is entitled to an adequate search reasonably calculated to uncover relevant documents. Weisberg v. Department of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (FOIA); Hill v. U.S. Air Force, 795 F.2d 1067, 1069 n. 4 (D.C.Cir.1986) (reasonable search satisfies Privacy Act).

Here, Mahdavi requested the C.I.A. to search for information under "Kamal Baradaran Mahdavi." One C.I.A. affidavit, dated May 11, 1988, stated that the C.I.A. conducted "a thorough and comprehensive search in response to Mr. Mahdavi's request" and that no information had been found. A second C.I.A. affidavit, dated June 23, 1988, declared that information searches had been conducted, but that "no Agency records were located under ... 'Kamal B. Mahdavi' " or "Kamal Baradaran." In opposing the motion, Mahdavi alleges only that the searches were inadequate, and does not set forth specific facts regarding the alleged inadequacy of the search.

The C.I.A., through the submission of affidavits declaring the absence of information on Mahdavi in its files, has met its initial burden of proof of demonstrating the absence of any material issue of fact. See Celotex, 477 U.S. at 323. In contrast, Mahdavi's allegation that the C.I.A. searches were somehow inadequate, fails to meet his burden of proof necessary to defeat the C.I.A.'s motion for summary judgment. See In re R & T Roofing Structures, No. 87-2985, slip op. at 543; T.W. Elec. Service, 809 F.2d at 630. Accordingly, the district court did not err by granting the C.I.A.'s motion for summary judgment.

The district court's orders reassigning Mahdavi's case, denying Mahdavi's motions to recuse Judge Jensen, and granting summary judgment for the C.I.A. are affirmed.

AFFIRMED.