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Citizens for Responsibility & Ethics In Wash. v. U. S. Dept. of Veterans Affairs

United States District Court, D. Columbia.

September 24, 2014

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTION, Plaintiff,
v.
U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant

Page 116

For CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff: Anne L. Weismann, LEAD ATTORNEY, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Washington, DC; Daniel S. Alcorn, LEAD ATTORNEY, McLean, VA.

For U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant: Robin Michelle Meriweather, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

Page 117

PAUL L. FRIEDMAN, United States District Judge.

This Freedom of Information Act case is before the Court on the defendant's second renewed motion for summary judgment and motion for reconsideration of this Court's Opinion dated December 15, 2011. Upon consideration of the parties' papers, the attached declarations and exhibits, the relevant legal authorities, and the entire record in this case, the Court will grant the defendant's motion for summary judgment and deny the motion for reconsideration as moot.[1] In addition, the defendant will be ordered to show cause in writing why a sanction, in the form of attorneys' fees, should not be entered.

I. BACKGROUND

The facts of this case are recounted in detail in this Court's prior Opinion dated December 15, 2011. Op. at 2-6, reported at 828 F.Supp.2d 325. They are summarized here as relevant.

A. The FOIA Request

In May 2008, an e-mail from Dr. Norma J. Perez, at that time employed as a psychologist and coordinator of the post-traumatic stress disorder (" PTSD" ) clinical team at defendant Department of Veterans Affairs' (" VA" ) medical center in Temple, Texas, was leaked to the public. See Mot. Ex. 2, Office of the Inspector General Report No. 08-02089-59, at 4 [Dkt. No. 65-2]. That e-mail was widely interpreted as suggesting that VA employees should refrain from giving PTSD diagnoses in order to cut costs. Id. It quickly became the subject of a congressional hearing. Id.; see generally Mot. Ex. 1, Statement of Dr. Norma J. Perez, Senate Committee on Veterans' Affairs, June 4, 2008 [Dkt. No. 65-1].

On the heels of the e-mail leak, plaintiff Citizens for Responsibility and Ethics in Washington (" CREW" ) submitted a FOIA request to the VA for records relating to

Page 118

" guidance" on PTSD diagnoses. Compl. Ex. 1, Letter from Anne L. Weismann to the VA at 1, May 14, 2008 [Dkt. No. 1-2]. The VA denied CREW's document request, claiming that it was " overly broad" and imposed " an extremely burdensome search effort." Compl. ¶ 18. The VA also denied CREW's request for a public interest fee waiver. Id. CREW appealed administratively, see id. ¶ 19, but the VA failed to respond or produce any documents. See id. ¶ 22. Consequently, on August 27, 2008, CREW filed the instant complaint in this Court under the FOIA, claiming: (1) that the VA failed to produce requested records; and (2) that the VA improperly denied CREW's request for a fee waiver. See id. ¶ 2.[2]

B. Procedural History

On September 23, 2009, the VA filed a motion for summary judgment, asserting that it had performed an adequate search and had released to CREW all records responsive to CREW's request. See First MSJ at 1. CREW opposed the VA's motion, arguing that, although Dr. Perez's e-mail was dated March 20, 2008, the VA's declarations revealed that its search of its electronic records " did not reach back to that time, but rather included only e-mail messages dating back to December 9, 2008." Opp. to First MSJ at 9. In support of its position, CREW pointed to the declaration of John Livornese, the Director of FOIA Service for the VA, in which Mr. Livornese stated: " As a result of the search [of Dr. Perez's records], two files were provided by VA Exchange Administrators -- a snapshot of her current mailbox and a copy of e-mail messages dating back to 12/9/08, which contained one or more search terms and were deemed responsive." Declaration of John Livornese (" Sept. 2009 Livornese Decl." ) ¶ 8, Sept. 18, 2009 [Dkt. Nos. 16-4, 36-3].

The VA subsequently explained in reply that it was " unable to recover e-mails created before December 9, 2008 because the VA's regular rotation of backup tapes precluded the recovery of older e-mail messages." First MSJ Reply at 9. In a supplemental declaration dated November 5, 2009, Mr. Livornese further elaborated that " although the search encompassed the period January 1, 2001 to December 31, 2008, the records retrieved as a result of that search dated back only to December 9, 2008." Supplemental Declaration of John Livornese (" Nov. 2009 Livornese Supp. Decl." ) ¶ 5, Nov. 5, 2009 [Dkt. Nos. 21-1, 36-3].

Far from putting this issue to rest, CREW considered the VA's reply a " revelation[] that the VA . . . destroyed documents clearly responsive to CREW's . . . FOIA . . . request . . . ." Pl. Surreply to First MSJ at 1. According to CREW, Mr. Livornese's supplemental declaration established that the " VA destroyed potentially responsive records after CREW made its FOIA request in this matter on May 14, 2008 -- a request that expressly sought e-mails and other electronic records -- and after CREW filed its lawsuit on August 27, 2008 in this case." Id. at 2-3.

After briefing on the VA's motion for summary judgment was complete, the VA made two supplemental releases of documents to CREW, containing, among other things, a copy of Dr. Perez's March 20, 2008 e-mail. See Def. First Supp. Release at 1; Def. Second Supp. Release at 1-2. The VA then withdrew its motion for summary judgment with the intent of filing a renewed motion that would consolidate all

Page 119

issues into a single set of briefs. See Notice of Withdrawal of Motion at 1, May ...


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