United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
C. LAMBERTH, UNITED STATES DISTRICT JUDGE.
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
precise factual record in this case is somewhat difficult to
distill. 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. The VA's counsel, on the
other hand, characterizes Mr. Alford as having made three
separate FOIA requests. See  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.
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.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.
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  at para 6.
Without a response from the VA, Mr. Alford filed suit in this
Court on October 31, 2016.
December 5, 2016, Mr. Alford submitted his fourth request,
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  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, ,
and Mr. Alford filed his First Amended Complaint  that
January 30, 2017, the VA filed its Motion for summary
judgment, , 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  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.  at n. 1.
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 .
consideration of the VA's Motion  for summary
judgment, its embedded Motion to dismiss the Amended
Complaint,  at n. 1, Mr. Alford's opposition, ,
the VA's reply thereto, , and Mr. Alford's
surreply, , as well as Mr. Alford's requests for
costs and his motion  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  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  is denied.
Summary Judgment in FOIA Cases
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)).
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).
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)).
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.
Administrative Exhaustion in FOIA Cases
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)).