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Alford v. Department of Veterans Affairs

United States District Court, District of Columbia

September 28, 2017

LEROY ALFORD, Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE.

         I. Background

         Leroy Alford is a retired disabled veteran who had been receiving certain vocational rehabilitation and employment benefits until they were discontinued by the Department of Veterans Affairs (VA) on April 22, 2016. In short, in parallel with other efforts, Mr. Alford has filed requests under the Freedom of Information Act (FOIA), 5 U.S.C. §552, for records that would shed light on the VA's decision to terminate his participation in the vocational rehabilitation program and help him prepare a possible time-sensitive appeal.

         The precise factual record in this case is somewhat difficult to distill.[1] The parties disagree on such basic matters including exactly how many FOIA requests were filed and when. Mr. Alford appears to have changed his mind at various points in his communications with the VA about whether he was in fact making a FOIA request.[2] The VA's counsel, on the other hand, characterizes Mr. Alford as having made three separate FOIA requests. See [7] at * 1 and n. 1. After spending an inordinate amount of time piecing together a complete timeline from the exhibits each side has included with their filings, the Court counts four communications from Mr. Alford to the VA that either explicitly were FOIA requests, or that the VA construed as FOIA requests.

         First, on May 18, 2016, Mr. Alford informed the VA that he wished to review his vocational rehabilitation case file. Mr. Alford made a second request, on June 2, 2016, reiterating the first.[3]The VA processed these as FOIA requests and, on July 14, 2016, released to Mr. Alford his entire Counseling/Evaluation/Rehabilitation (CER) folder, which included an Individual Written Rehabilitation Plan (IWRP) dated June 7, 2011. [7-2] at paras 8-9.

         On September 8, 2016 Mr. Alford transmitted via fax to the VA what can be accounted for present purposes as his third FOIA request, which references an earlier but unspecified "Second [FOIA] Request." [1-1] at *23. He emailed the same document to his point of contact at the VA the following day. In this request, Mr. Alford asked for "copies of any [IWRP not already produced, ] dated after 06/06/11." Id. Having received no response from the VA, he emailed the agency on October 27, 2016 to follow-up on his request. Pls. Complaint [1] at para 6. Without a response from the VA, Mr. Alford filed suit in this Court on October 31, 2016.

         On December 5, 2016, Mr. Alford submitted his fourth request, [4] which appears to feature as a subject line the words, "Second [FOIA] Request." [4-1] at *7. This time, Mr. Alford asked for "all records[] contained in my [vocational rehabilitation] file folder, [and] any emails between VA personnel concerning any discussions" regarding his entitlements after the VA's July 14, 2016 document release to Mr. Alford. After again receiving no response from the VA, Mr. Alford filed a Motion [4] for leave to amend his complaint on December 27, 2016, to include his expanded request in the present lawsuit. The Court granted leave to file his amended complaint on January 11, 2017, [5], and Mr. Alford filed his First Amended Complaint [6] that same day.

         On January 30, 2017, the VA filed its Motion for summary judgment, [7], arguing it conducted a reasonable search for the records Mr. Alford requested on May 18, 2016 (and, impliedly, June 2, 2016), and produced to Mr. Alford his CER folder in its entirety, which it says fulfills his request. The VA has also represented that, in reference to Mr. Alford's September 8, 2016 request, it has adequately searched for any further IWRPs, and that none exist. 2d Grant decl. at para 6. Finally, having failed either to oppose Mr. Alford's Motion [4] for leave to amend his complaint or respond to the amended complaint once filed, see Fed. R. Civ. P. 15(a)(3), and without so much as a citation to the applicable regulation (which the Court surmises to be 38 C.F.R. § 1.559(f)), the VA moves this Court to dismiss Mr. Alford's First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for his supposed failure to exhaust administrative remedies related to his fourth FOIA request. [7] at n. 1.

         For his part, Mr. Alford disputes the adequacy of the VA's searches and production. See [ 10]; [ 17]. He also has requested the Court to order the VA to pay his costs for bringing the present action, [4-1] at *3, and has since moved for leave to file a second amended complaint and for the Court to hold a hearing on his case. See [18].

         Upon consideration of the VA's Motion [7] for summary judgment, its embedded Motion to dismiss the Amended Complaint, [7] at n. 1, Mr. Alford's opposition, [10], the VA's reply thereto, [13], and Mr. Alford's surreply, [17], as well as Mr. Alford's requests for costs and his motion [18] for leave to file a Second Amended Complaint to request a hearing, and the entire record before the Court, the VA's motion for summary judgment [7] is granted-in-part and denied-in-part; the VA's motion to dismiss Mr. Alford's first amended complaint is denied; Mr. Alford's request for costs is granted; and Mr. Alford's motion to amend his complaint to request a hearing [18] is denied.

         II. Legal Standards

         a. Summary Judgment in FOIA Cases

         Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(a). As applied in a FOIA case, an agency defendant may be entitled to summary judgment if it demonstrates that 1) no material facts are in dispute, 2) it has conducted an adequate search for responsive records, and 3) each responsive record that it has located has either been produced to the plaintiff or is exempt from disclosure. Miller v. U.S. Dep't of Justice, 872 F.Supp.2d 12, 18 (D.D.C. 2012) (citing Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980)).

         When an agency receives a FOIA request it is obligated to "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Dep't of State, 897 F.2d 540, 541 (D.C. Cir. 1990) (internal quotation marks omitted). The adequacy of a search, therefore, depends not on "whether any further documents might conceivably exist, " id., but on the search's design and scope. An agency must accordingly show that it made "a good faith effort to conduct a search for the requested records, using methods [that] can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

         The agency bears the burden of showing that it complied with FOIA and it may meet this burden "by providing 'a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials ... were searched.'" Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003). The plaintiff may then "provide 'countervailing evidence' as to the adequacy of the agency's search." Id. at 314. If a review of the record created by these affidavits "raises substantial doubt, " as to a search's adequacy, "particularly in view of 'well defined requests and positive indications of overlooked materials.'" summary judgment would not be appropriate. Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Founding Church of Scientology v. Nat'l. Sec. Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).

         "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard, 926 F.2d at 1200. They may, however, be rebutted by evidence of bad faith. Id.

         b. Administrative Exhaustion in FOIA Cases

         Generally, FOIA requesters "must exhaust administrative appeal remedies before seeking judicial redress." Citizens for Responsibility and Ethics in Washington v. FEC, 711 F.3d 180, 182 (2013). "But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement." Id. (citing 5 U.S.C. § 552(a)(6)(C)(i)).

         III. ...


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