Oram v. Wilkie

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 CYRIL DAVID DANIEL ORAM, JR., Case No. C21-75RSM 10 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 12 v. AND GRANTING DEFENDANT’S 13 CROSS-MOTION FOR SUMMARY ROBERT WILKIE, et al., JUDGMENT 14 Defendants. 15 16 This matter comes before the Court on the parties’ Motions for Summary Judgment. 17 Dkts. #19 and #20. Defendant the United States Department of Veterans Affairs (the “VA”) 18 moves for summary judgment in this Freedom of Information Act (“FOIA”) and Privacy Act 19 litigation, arguing that it has “released to Plaintiff all responsive, non-exempt records located as 20 a result of a reasonable search for the two records requests alleged in the Amended Complaint.” 21 22 Dkt. #20 at 2. The VA states that it has withheld no documents and made redactions under 23 FOIA Exemption 6 only for social security numbers and “rating specialist numbers belonging 24 to third parties.” Id. The VA argues that Plaintiff’s other claims are either moot, premature, or 25 procedurally improper. See id. 26 The only record requests properly before the Court are those set forth in Plaintiff’s 27 28 Amended Complaint. See Dkt. #17 at ¶ 20 (“FOIA & Privacy Act request to the VA dated Apr 23, 2020”) and at ¶ 30 (“FOIA & Privacy Act request to the VA dated Mar 3, 2021”); Dkt. #17- 1 2 1 at 1 and 32–33. The first request, dated April 24, 2020, states “I request a copy of my claims 3 folder (C-File).” Dkt. #17-1 at 1. A “C-file” is a collection of records kept by the VA in 4 connection with a veteran’s disability claims. Dkt. #21 (“Harvey Decl.”), ¶ 4. It “typically 5 includes service treatment records, discharge documents, claim-related documents and service- 6 related documents.” Id. In response to this request, the VA conducted a search of the Veterans 7 8 Benefit Management System (“VBMS”) database, using Plaintiff’s name and social security 9 number to identify responsive records. Id. at ¶¶ 4–6. The VA used their typical FOIA/Privacy 10 Act process to determine what to release. The VA did not withhold any documents but 11 included redactions of social security numbers and rating specialist numbers belonging to other 12 13 veterans and VA claims processors. The VA redacted this information because third-party 14 information is not subject to release under the Privacy Act and because it is protected by FOIA 15 Exemption 6. Id. at ¶¶ 7–8. 16 The VA released these records to Plaintiff by mailing a CD to the address Plaintiff 17 provided on November 3, 2020. Id. ¶ 9, Ex. 3. On December 8, 2020, Plaintiff submitted an 18 19 appeal to the Office of General Counsel indicating that he had not received his C-file. Id. at ¶ 20 10. In January 2021, the VA mailed the records to a new address provided by Plaintiff. Id. at ¶ 21 11. The package was subsequently returned to the VA as undeliverable. Id. On or about 22 January 20, 2021, Plaintiff initiated this litigation. See Dkt. 1. On February 23, 2021, the VA 23 mailed the records to the address provided by Plaintiff, and Plaintiff acknowledges receiving 24 25 them. See id. at ¶ 12; Dkt. #17 ¶ 17 n.6. 26 The second request alleged in the Amended Complaint, dated March 3, 2021, states, “I 27 hereby request a copy of my compensation and pension exams…. performed… on March 3, 28 2021 and related to the Veteran’s Title 38 Claim(s) and wherever such records about the 1 2 Veteran’s claim are kept or stored by the VA.” Dkt. #17-1 at 32. On March 24, 2021, Plaintiff 3 sought leave to amend his Complaint to include allegations related to this new request. See 4 Dkts. #15 and #16. The Amended Complaint also includes a cause of action for unlawful 5 patterns of practice under FOIA and the Privacy Act. Dkt. #17 at 8–9. 6 In response to Plaintiff’s March 3, 2021, records request, the VA conducted a search of 7 8 the VBMS database using Plaintiff’s name and social security number as search terms, and then 9 a supplement manual search for “C&P Examination Results” and “March 3, 2021.” Harvey 10 Decl. at ¶ 14. All records found by the VA were released without redactions to Plaintiff under 11 the Privacy Act. Id. They were sent by mail on a CD on April 1, 2021. Id. at ¶ 19. Before the 12 13 VA released these records, on March 30, 2021, Plaintiff sent an email to the VA FOIA appeals 14 office indicating “I requested an expedited faxed copy of my C&P exam and I have not 15 received a timely response in the matter or a timely request for an extension of the initial 16 request as statutorily mandated under FOIA.” Id. at ¶ 15, Ex. 4. The VA interpreted this to be 17 an appeal, and in response to Plaintiff’s demands that the records be either faxed or sent by 18 19 email, the VA advised that the records would be sent by mail as they contained personally 20 identifiable information. Id. at ¶¶ 15-16, Ex. 4. Plaintiff acknowledges receiving these records. 21 See Dkt. #19. 22 Plaintiff’s Motion for Summary Judgment identifies other records requests that do not 23 appear in the Amended Complaint. Plaintiff concedes that claims for requests dated May 21 24 25 and May 25, 2021, are “premature” as no deadline had passed at the time of his May 27, 2021 26 Motion. See Dkt. #19 at 2–3. 27 28 In FOIA cases, the usual summary judgment standards apply and “if there are genuine 1 2 issues of material fact in a FOIA case, the district court should proceed to a bench trial or 3 adversary hearing” and issue findings of fact and conclusions of law. Animal Legal Def. Fund 4 v. United States FDA, 836 F.3d 987, 990 (9th Cir. 2016) (citing Fed. R. Civ. P. 52(a)(1)); see 5 also Cameranesi v. United States DOD, 856 F.3d 626, 636 (9th Cir. 2017) (“We have now 6 overruled this FOIA-specific summary judgment standard, and instead apply our usual summary 7 8 judgment standard.”). 9 Accordingly, summary judgment is appropriate where “the movant shows that there is 10 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 11 law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 12 13 Material facts are those which might affect the outcome of the suit under governing law. 14 Anderson, 477 U.S. at 248. In ruling on summary judgment, a court does not weigh evidence to 15 determine the truth of the matter, but “only determine[s] whether there is a genuine issue for 16 trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. 17 Corp. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). 18 19 On a motion for summary judgment, the court views the evidence and draws inferences 20 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. 21 Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable 22 inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d 23 on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient 24 25 showing on an essential element of her case with respect to which she has the burden of proof” 26 to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 27 28 FOIA establishes “a judicially enforceable right to secure [government] information 1 2 from possibly unwilling official hands.” Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S. 3 Ct. 1592, 48 L. Ed. 2d 11 (1976) (citing S. Rep. No. 813, 89th Cong. (1st Sess. 1965)); see also 4 Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009). The aim of these disclosure requirements is 5 to “ensure an informed citizenry, vital to the functioning of democratic society, needed to check 6 against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins 7 8 Tire & Rubber Co., 437 U.S. 214, 242, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978); see also 9 Hamdan v. United States DOJ, 797 F.3d 759, 770 (9th Cir. 2015); Shannahan v. I.R.S., 672 10 F.3d 1142, 1148 (9th Cir. 2012). 11 Federal agencies have a duty to construe FOIA requests liberally. Yagman v. Pompeo, 12 13 868 F.3d 1075, 1080 (9th Cir. 2017). Upon receipt of a FOIA request, a federal agency “shall 14 make the records promptly available,” 5 U.S.C. § 552(a)(3)(A), and “shall make reasonable 15 efforts to search for the records” responsive to a request. Id. § 552(a)(3)(C)–(D). Agencies 16 must respond to FOIA requests within twenty business days of receipt, id. § 552(a)(6)(A)(i), 17 and disclose responsive documents unless one or more of FOIA’s exemptions apply. These 18 19 exemptions are “narrowly construed.” Shannahan, 672 F.3d at 1149. An agency bears the 20 burden of establishing that an exemption applies. Lahr, 569 F.3d at 973. “Any reasonably 21 segregable portion of a record shall be provided” to the FOIA requester. 5 U.S.C. § 552(b). 22 “Unlike FOIA . . . the Privacy Act does not have disclosure as its primary goal.” 23 Carlborg v. Dep’t of the Navy, No. 18-CV-1881 (DLF), 2020 WL 4583270, *3 (D.D.C. Aug. 24 25 10, 2020) (internal quotation omitted). “[T]he Privacy Act’s primary goal is to protect the 26 privacy of individuals through regulation of the collection, maintenance, use, and dissemination 27 of information by federal agencies . . . [and] as part of the effort to give individuals more 28 control over information about themselves, the Privacy Act gives individuals a right to gain 1 2 access to government records concerning themselves upon request.” Rojas v. FAA, 941 F.3d 3 392, 397 (9th Cir. 2019); see also 5 U.S.C. § 552a(d)(1). Critically, the Privacy Act only 4 authorizes disclosure of a record if it pertains to the requester. See U.S.C. § 552a(b); Carlborg, 5 2020 WL 4583270 at *7 (requester not entitled to third party-information under Privacy Act). 6 The Privacy Act also “only includes access to records maintained in a ‘system of records,’ 7 8 meaning ‘group of any records under the control of any agency from which information is 9 retrieved by the name of the individual or by some identifying number, symbol, or other 10 identifying particular assigned to the individual.’” Singh v. USPS, No. C17-0233-JCC, 2017 11 WL 2930590, at *4 (W.D. Wash. July 10, 2017), aff’d, 713 F. App’x 661 (9th Cir. 2018) 12 13 (quoting 5 U.S.C. § 552a(a)(5)). And, unlike FOIA, “the Privacy Act does not contain any 14 deadlines for responding to a request.” Demoruelle v. Dep’t of Veterans Affs., No. CV 16-00562 15 LEK-KSC, 2017 WL 2836989, at *7 (D. Haw. June 30, 2017). 16 However, like “the public access right granted by FOIA, the Privacy Act’s private 17 access right is subject to numerous exemptions.” Rojas, 941 F.3d at 397. While the statutes are 18 19 similar in this regard, their exemptions are not co-extensive. See Carlborg, 2020 WL 4583270 20 at *3. For a records request where “both statutes are at play, an agency seeking to withhold 21 records must demonstrate that the documents fall within some exemption under each Act.” Id. 22 (internal citation omitted). Similarly, “[u]nder both the Privacy Act and FOIA, an agency must 23 conduct an adequate and reasonable search for relevant records.” Id. 24 25 The Court has reviewed the undisputed facts and procedural history of this case as 26 submitted by the parties. The Court understands Plaintiff’s frustration with the delay in 27 receiving his records and the problems caused by the VA’s insistence on sending them on a CD 28 as opposed to in an email. However, the record shows that the VA has now released all non- 1 2 exempt materials responsive to his April 24, 2020, and March 3, 2021, records requests. See 3 Harvey Decl. ¶¶ 9-12, 19-20. Plaintiff’s claims that the search process was flawed or that 4 certain documents were withheld are speculative and unsubstantiated. The VA argues that the 5 claims in this case are therefore moot, and the Court agrees. See Dkt. #20 at 8 (citing, e.g., 6 Johnson v. Comm’r, 239 F. Supp. 2d 1125, 1137 (W.D. Wash. 2002) (“If, upon the initiation of 7 8 a lawsuit, it is determined that all documents found responsive to the underlying request have 9 been released in full to the requester, the litigation should be dismissed on the grounds of 10 mootness because there is no justiciable controversy”); Sterrett v. Dep’t of Navy, No. 09-CV- 11 2083-IEG POR, 2010 WL 330086 at *2 (S.D. Cal. Jan. 20, 2010) (collecting cases); 12 13 Demoruelle, 2017 WL 2836989 at *7). 14 Plaintiff has not made an adequate showing of the essential elements of his pattern or 15 practice claim. To support such a claim, he must demonstrate that an “alleged policy or 16 practice will impair plaintiff’s ‘lawful access to information in the future.’” Nat’l Parks 17 Conservation Ass’n v. U.S. Dep’t of the Navy, No. C19-645 TSZ, 2021 WL 1192443, at *6 18 19 (W.D. Wash. Mar. 30, 2021). Plaintiff has failed to identify such a policy or practice, other 20 than to point to the isolated instance of the VA’s delay in responding to his April 24, 2020, 21 request. Dismissal is therefore warranted. See Celotex Corp., supra. 22 Plaintiff cannot continue this litigation by raising new FOIA or Privacy Act requests not 23 contained in his Amended Complaint, and he appears to acknowledge that such claims are 24 25 premature. Monetary damages are not available under either FOIA or Privacy Act claims. See 26 Johnson, 239 F. Supp. 2d at 1138. Fees or costs are not warranted under the facts of this case. 27 Sanctions under Rule 11 are unwarranted given all of the above, and in any event Plaintiff’s 28 request is properly denied as procedurally improper because he did not include it in a separate 1 2 motion and failed to provide notice before making the request. See Fed. R. Civ. P. 11(c)(2). 3 Accordingly, the Court hereby finds and ORDERS: 4 1) Plaintiff’s Motion for Summary Judgment, Dkt. #19, is DENIED. 5 2) Defendant’s Motion for Summary Judgment, Dkt. #20, is GRANTED. All of 6 Plaintiff’s claims are DISMISSED. 7 8 3) Plaintiff’s Motion for Leave to File Response to Agency Reply is DENIED as the 9 requested relief is procedurally improper under Local Civil Rule 7. 10 4) All other pending Motions are DENIED as MOOT. This case is CLOSED. 11 DATED this 28th day of October, 2021. 12 13 A 14 15 RICARDO S. MARTINEZ 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28