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Murray v. Shulkin

United States District Court, District of Columbia

September 19, 2017

Tyrone E. Murray, Plaintiff,
David J. Shulkin[1], Defendant.



         Plaintiff, appearing pro se, has filed a “Complaint Seeking Documents Pursuant to Privacy Act” against the Secretary of Veterans Affairs, ECF No. 1. His grounds for jurisdiction are the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act (“FOIA”), 5 U.S.C § 552. Compl. at 1. Asserting that it has satisfied its disclosure obligations under FOIA, defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Def.'s Mot. for Summ. J., ECF No. 23. In his opposition to defendant's motion, plaintiff disputes defendant's characterization of the complaint as brought under FOIA, and he has also moved for summary judgment. See Pl.'s Opp'n to Def.'s Mot. for Summ. J. or in the Alternative Grant Mot. for Summ. J. and Damages in Favor of the Plaintiff, ECF No. 26.

         The Court agrees that defendant's FOIA disclosure does not address all of plaintiff's claims but finds the surviving claim based on the Privacy Act's amendment requirements to be unexhausted. Hence, for the reasons explained more fully below, the Court will grant summary judgment to defendant on the FOIA claim, deny summary judgment to plaintiff, and dismiss the remaining Privacy Act amendment claim pursuant to 28 U.S.C. § 1915(e).[2]

         I. BACKGROUND

         On February 29, 2016, plaintiff submitted a “Request for Documents” to the Board of Veterans Appeals' (“BVA”) FOIA/Privacy Act Office. Ex. 1 to Decl. of Tracy Knight, ECF No.23-2 pp. 11-13 (“Request”). In the 22-paragraph request, plaintiff indicated that he was seeking his records that were the subject of a hearing. Plaintiff wrote that “[t]he Board did not allow me to review my own files, folders, documents, hardcopies or computerized, that Department of Veterans Affairs have concerning me, and that were before Judge Barbara Copeland on February 1, 2016. Request ¶ 1. He then accused the VA of falsifying his records, writing in part:

The Baltimore Regional Office of Veterans Affairs, U.S. law enforcement, used my son's . . . service connected disabilities and medical records to falsify my VA medical records and appeals' files, folders and records. . . . The VA falsification of my VA records beginning in 2010 were computerized and put into VA's system under my son's VA computerized claim file, my son started his VA claim in 2010 at the same time I caught VABRO falsifying my records March 2010, and again beginning October/November 2010 when my son left Afghanistan and applied for VA benefits. . . . Because of law enforcement's continual surveillance of me, wherever I attempted to get medical treatment or did receive medical treatment, fraudulent medical documents were created, ordered by police.

Id. ¶¶ 3, 5, 6. Plaintiff concluded by repeating his request for “my computerized records and documents that Judge Barbara Copeland had before her on February 1, 2016, ” and he wrote parenthetically: “or my documents illegally held under both mentioned referenced [Board] matters, and too, held under my son's Tyrone E. Murray, [social security number ending in 5694], VA File Number.” Id. at 13.

         Plaintiff's request was interpreted as seeking a “complete copy of his VA claims file, including any information about any minor children of which the Department is aware.” Def.'s Knight Decl. ¶ 5. Such records are maintained in the Veterans Benefits Management System (“VBMS”) and are retrieved by the veteran's name, social security number, date of birth, and VA claims file number. A BVA Privacy Officer retrieved plaintiff's file, “using his social security number, ” and on April 15, 2016, BVA provided plaintiff “a complete unredacted copy of his VA claims file on CD.” Knight Decl. ¶¶ 10-11 and Ex. 2. In a letter dated April 20, 2016, plaintiff returned the compact disk and requested hard copies of his records, Ex. 3, which defendant provided on June 5, 2016, Ex. 4.

         In a lengthy letter dated July 30, 2016, plaintiff appealed the BVA's decision to the Office of General Counsel (“OGC”). He suggested that not all of his files were produced “[s]ince VA has intentionally and underhandedly put my VA records/files under multiple VA File No[s]. . . . and all other variations of my VA C file number and variations of my social security number.” Knight Decl., Ex. 6 at ECF p. 41. Plaintiff further suggested that his electronic files were “commingl[ed]” with his son's files bearing a different social security number and/or another veteran's files bearing yet another social security number. Id.

         In a letter dated September 15, 2016, addressing “a variety of [plaintiff's] concerns, ” the OGC first informed plaintiff that “BVA's response constitutes a complete grant of your request for access to your claims file under the Privacy Act. . . . Accordingly, we are taking no further action in that regard.” Ex. 7 to Knight Decl., ECF p. 90. OGC next informed plaintiff that to the extent he sought records pertaining to his son, his request was denied because he had no right to access any VA records about his son or such records under another individual's social security number. Id. In addition, OGC considered plaintiff's request under FOIA and informed him that “the information you seek about your son and under another SSN are protected from disclosure pursuant to FOIA Exemptions 3 and 6.” Id. Finally, OGC pointed plaintiff to the VA's Inspector General's Office if he “believe[d] there has been fraud, waste or abuse by VA, ” and to the FBI or local law enforcement if he ‘believe[d] that he or his family [was] in danger, ” and informed him of his right to file a lawsuit. ECF p. 91.

         Plaintiff then filed this lawsuit in November 2016, alleging, among other things, that his “request set out and proved that the VA's Baltimore Regional Office manufactured fraudulent documents, and fraudulent claim's files using variations of my name, variations of my VA file number, and variations of my social security number to justify denying plaintiff's claims for an increase to Service Connected Disability Compensation Benefits.” Compl. at 2 ¶ 3.

         In response to the complaint, defendant's declarant reviewed plaintiff's July 30, 2016 administrative appeal and determined that “he was arguably asking the VA to search for information related to him within the VA claims file of his son and another, unnamed Veteran.” Knight Decl. ¶ 25. As a result, the declarant conducted another search for responsive records, see id. ¶¶ 26-34, and concluded that after “multiple searches reasonably likely to locate records responsive to [plaintiff's] FOIA/PA Request/Appeal, ” no responsive records were found beyond “those contained within [plaintiff's] own VA claims file.” Id. ¶ 35. The search included “a page by page” review “of all documents of record contained in the VBMS records of Tyrone E. Murray (5694) and the unnamed Veteran (7488). . . . [N]either of those two files contained any documents pertaining to [plaintiff] Tyrone Murray (5570).” Id. ¶ 31.


         Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, ...

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