1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 VINTON P. FROST, 7 Case No. 17-cv-01240-JCS Plaintiff, 8 v. COURT’S CERTIFICATION THAT 9 APPEAL IS NOT TAKEN IN GOOD UNITED STATES DEPARTMENT OF FAITH 10 JUSTICE,

11 Defendant.

12 13 Under Rule 24 of the Federal Rules of Appellate Procedure, “[a] party who was permitted 14 to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma 15 pauperis without further authorization, unless . . . the district court – before or after the notice of 16 appeal is filed – certifies that the appeal is not taken in good faith or finds that the party is not 17 otherwise entitled to proceed in forma pauperis and states in writing its reasons for the 18 certification.” Under

(a)(3), “[a]n appeal may not be taken in forma pauperis if 19 the trial court certifies in writing that it is not taken in good faith.” The Ninth Circuit has 20 construed “not taken in good faith” to mean frivolous. See Hooker v. American Airlines,

1091, 1092 (9th Cir. 2002) (stating that “[i]f at least one issue or claim is found to be non- 22 frivolous, leave to proceed in forma pauperis on appeal must be granted for the case as a whole”). 23 Here, the Court finds that Plaintiff’s appeal is frivolous. 24 Plaintiff’s appeal appears to be based on his assertion that the FBI did not conduct an 25 adequate search for documents in response to his Freedom of Information Act (“FOIA”) request. 26 In particular, he argues that a word on one of the pages that was produced by the FBI was a 27 “codeword” that provided an “obvious and significant lead for FOIA-responsive documents” and 1 is adequate so long as the agency has “conducted a search reasonably calculated to uncover all 2 || relevant documents[,]” which can be demonstrated by submitting “in good faith” “reasonably 3 detailed, non-conclusory affidavits depicting adequate searches for the documents requested.” 4 Zemansky v. EPA,

(9th Cir. 1985). Further, it is well-established that 5 “hypothetical assertions [that documents are likely to exist] are insufficient to raise a material 6 || question of fact with respect to the adequacy of the agency’s search.” Meeropol v. Meese, 790 7 || F.2d 942, 952-53 (D.C.Cir. 1986). 8 Here, the Court found on summary judgment that the FBI conducted a search reasonably 9 || calculated to uncover all relevant documents based on affidavits that were submitted in good faith. 10 || Plaintiff’s theory that a word in one of the documents produced by the agency is a codeword that 11 provides clues as to the existence of additional responsive documents is entirely speculative. 12 || Therefore, the Court finds that Plaintiff’s appeal is not taken in good faith.

14 || Dated: February 1, 2021 15 16 Zz CZ J PH C. SPERO 17 ief Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28