United States District Court, D. Connecticut
THE FEW, THE PROUD, THE FORGOTTEN; VIETNAM VETERANS OF AMERICA; and CONNECTICUT STATE COUNCIL OF VIETNAM VETERANS OF AMERICA, Plaintiffs,
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.
RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Few, The Proud, The Forgotten, Vietnam Veterans of America,
and the Connecticut State Council of Vietnam Veterans of
America (together, “Plaintiffs”), brought this
action against the United States Department of Veterans
Affairs (“Defendant”), raising two claims under
the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552 et. seq., concerning a request for
Defendant's records. Plaintiffs argued (1) that
Defendant failed to make an official determination regarding
Plaintiffs' FOIA request within the statutorily mandated
period, violating 5 U.S.C. § 552(a)(6)(A); and (2) that
Defendant did not make reasonable efforts to search for the
records requested and to release responsive records promptly,
violating 5 U.S.C. § 552(a)(3)(C).
has moved for partial summary judgment. For the reasons set
forth below, Defendant's motion is GRANTED in part and
DENIED in part.
the facts recited below, derived from the Complaint [ECF No.
1] and the parties' Local Rule 56(a) Statements,
exhibits, affidavits, and supplemental filings, are
undisputed unless otherwise noted, and the Court presents all
facts “in the light most favorable to the nonmoving
party”-here, Plaintiffs-after drawing “all
reasonable inferences in [their] favor.” Sologub v.
City of New York, 202 F.3d 175, 178 (2d Cir.2000)
(quotation marks omitted). The Court relies on the Complaint
for the limited purpose of describing Plaintiffs and their
FOIA request, not to establish the record concerning
Defendant's liability under FOIA.
the U.S. Department of Veterans Affairs (“Veterans
Affairs”) is the federal agency responsible for
providing benefits and compensation to veterans who are
disabled due to their military service. Compl. ¶ 6. This
case concerns Plaintiffs' request for Defendant's
records concerning the Subject Matter Expert
(“SME”) program. Defendant implemented this
program in 2012 to facilitate the adjudication of disability
claims relating to water contamination at Camp Lejeune, a
Marine Corps Base in North Carolina. See FOIA
Request, Compl. Ex. 1, p. 1.
Few, The Proud, The Forgotten (“TFTPTF”), founded
in 1997 and led by retired Marine Master Sergeant Jerome
Ensminger, focuses on water contamination at Camp Lejeune.
Compl. ¶ 3.
Vietnam Veterans of America (“VVA”), founded in
1978, has 75, 000 members and 635 chapters nationwide. Compl.
¶ 4. One of the organization's “advocacy
priorities is addressing the impact of toxic exposures on
veterans and their families.” Id.
Connecticut State Council of Vietnam Veterans of America
(“VVA-CT”) is a Vietnam Veterans of America State
Council that represents members of VVA's five Connecticut
chapters and members at large. Compl. ¶ 5. VVA-CT is
based in New Britain, Connecticut. Id.
Benefits Administration (“VBA”) is the component
of Veterans Affairs “responsible for oversight of the
delivery of disability compensation to veterans with
disabilities that are the result of a disease or injury
incurred or aggravated during military service.”
Def.'s L.R. 56(a) Stmt. ¶ 7. VBA “is
responsible for adjudicating disability claims by veterans,
including disability claims made in connection with service
at Camp Lejeune.” Id. Veterans Health
Administration (“VHA”) is another component of
Veterans Affairs. Id. at ¶ 22. It is
“responsible for the delivery of medical care to
veterans through the administration and operation of various
medical centers and clinics.” Id.
Water Contamination at Camp Lejeune and the SME
seek records concerning Veterans Affairs' compensation
scheme for injuries caused to veterans by contaminated water
at Camp Lejeune. According to Plaintiffs, for many years,
Camp Lejeune contained contaminated water that “caused
serious illnesses, including bladder cancer, leukemia, kidney
cancer, and liver cancer.” Compl. p.1-2. Between 1953
and 1987, Plaintiffs state, “nearly one million
Marines, sailors, civilian employees, and military family
members aboard Marine Corps Base Camp Lejeune unknowingly
drank, cooked with, and bathed in contaminated water.”
Id. Today, Veterans Affairs provides benefits for
disabilities resulting from or exacerbated by their military
service, including those caused by this contamination.
believe that Veterans Affairs has “denied the
overwhelming majority of disability claims from Camp Lejeune
veterans.” Compl. p. 1. While few details about the SME
program have been released to the public, Plaintiffs argue
that the program “made it even more difficult for
veterans to obtain disability benefits for disabilities
resulting from contamination at Camp Lejeune.” Compl.
p. 1. They note that, after Veterans Affairs implemented the
SME program, the grant rate for Camp Lejeune claims has
dropped from 25% to 8%. Id. at ¶ 13. They seek
information about how the SME program operates, arguing that
“the little that is known about the program suggests
fundamental flaws in Veterans Affairs' criteria for
selecting SMEs, and the SMEs's methodology, training, and
The FOIA Request
December 7, 2015, Plaintiffs sent at least one twenty-part
FOIA request to Veterans Affairs, which were distributed to
the VHA and the VBA. Def.'s L.R. 56(a) Stmt. ¶¶
1, 3; Pl.'s L.R. 56(a) Stmt. ¶¶ 1, 3. The
parties dispute whether Plaintiffs sent one request to
Veterans Affairs, which was forwarded internally to VBA and
VHA, or sent Defendant two identical requests, one to each
component. See Id. Regardless, the record
establishes that both VBA and VHA received Plaintiffs'
request, Plaintiffs sought information concerning the SME
1. Any and all Records concerning the policies, procedures,
objectives, development, creation, and implementation of the
2. Any and all Records concerning the VA's selection
criteria and minimum required credentials for SMEs
participating in the Camp Lejeune SME Program.
3. Any and all Records concerning the qualifications and
names of SMEs who have participated, or are currently
participating, in the Camp Lejeune SME Program.
FOIA request, ¶¶ 1-3. Plaintiffs also sought other
information concerning the SME program, including conflict of
interest, training, compensation, and disclosure policies
relating to the program. Id. at ¶¶ 4, 7.
Plaintiffs also requested information concerning the role of
SMEs in claims processing, including:
10. Any and all Records provided to VA employees, including
VA Regional Office claim adjudicators, to train and educate
VA employees on the Camp Lejeune SME Program, including, but
not limited to, the role of SME reports and how to weigh and
evaluate SME reports.
11. Any and all Records concerning guidance provided to
adjudicators on whether to seek an SME report in the course
of adjudication of a Camp Lejeune Water Contamination Claim.
12. Any and all Records concerning the VA's disclosure of
SME reports, including but not limited to:
a. the VA's disclosure policy on SME Reports; and
b. the number of instances in which a claimant has requested
a copy of the SME report generated in his or her case. For
each claimant request, include information on how quickly the
requested report was provided to the claimant or, if the
request was denied, the grounds for withholding the SME
report from the claimant.
13. Any and all Records concerning the total number of Camp
Lejeune Water Contamination Claims decided prior to the
implementation of the Camp Lejeune SME Program and the
outcomes of those claims (including average time between
submission of a claim and initial determination by a Regional
Office, the number of denials, and the number of grants).
This Request seeks records created before and after 2010.
14. Any and all Records concerning the impact of the Camp
Lejeune SME Program on adjudication of claims, including but
not limited to:
a. the total number of Camp Lejeune Water Contamination
Claims that have been adjudicated since the institution of
the Camp Lejeune SME Program and the outcomes of those claims
(including average time between submission of a claim and
initial determination by a Regional Office, the number of
denials, and the number of grants);
b. the total number of Camp Lejeune Water Contamination
Claims that have been reviewed by SMEs and the outcomes of
those claims (including average time between submission of a
claim and initial determination by a Regional Office, the
number of denials, and the number of grants); c. the total
number of Camp Lejeune Water Contamination Claims reviewed by
each individual SME, including the number of claims that were
approved and denied following review by each SME; and the
total number of instances in which an adjudicator decided a
case against the recommendation of an SME report.
15. The number of Camp Lejeune Water Contamination Claims
that have been decided since Secretary McDonald assured
Senators on a conference call in July 2015 that no claims
would be denied until a presumption was proposed, including
whether those claims were granted or denied.
16. Any and all Records concerning the annual costs of the
Camp Lejeune SME Program.
17. Any and all Records concerning the remuneration paid to
SMEs by the VA.
Id. at ¶¶ 10-17.
also sought records concerning agency communications in
paragraph 19, in which they specifically requested:
Any and all Records concerning internal and external
communications about the Camp Lejeune SME Program, including
but not limited to communications involving Dr. Terry
Walters, Dr. Gerald Cross, Brad Flohr, Dr. Michael
Koopmeiners, Dr. Victoria Cassano, Dr. Carolyn Clancy, Dr.
Ralph Erickson, Dr. Deborah Heaney, Dr. Ronald F. Teichman;
Dr. Wanda Blaylark, Dr. Gary B. Wilhelm, Dr. Amir Mohammad;
Dr. Ronit Ben-Abraham Katz:
a. concerning the proposal, development, objectives, and
implementation of the Camp Lejeune SME Program;
b. between SMEs pertaining to the Camp Lejeune SME Program;
c. between SMEs and other VA employees pertaining to the Camp
Lejeune SME Program;
d. between VA employees and Congressional staff regarding the
inception or operation of the Camp Lejeune SME Program,
including but not limited to minutes from the July 2015 and
December 2015 meetings between VA Secretary McDonald and
Members of Congress, including Senators Burr and Tillis;
e. between VA employees pertaining to the Camp Lejeune SME
Program; and f. discussing or responding to media inquiries
concerning the Camp Lejeune SME Program.
Id. at ¶ 19.
December 21, 2015, Veterans Affairs decided that VBA would be
responsible for responding to paragraphs 10, 12, 13, 14, 15,
16, 17, 19, and part of 20 of Plaintiffs' request, and
VHA would respond to the rest. Def.'s L.R. 56(a) Stmt.
¶ 4. In June 2016, Veterans Affairs determined VHA would
also be responsible for paragraphs 16 and 17 of the request.
Id. at ¶ 5. Both agency components began to
search for responsive documents.
VBA's Search and Production
FOIA officer, Bertha Brown, responded to Plaintiffs' FOIA
request. On August 31, 2016, Ms. Brown mailed a letter to
Plaintiffs with documents responsive to their request.
Def.'s L.R. 56(a) Stmt. ¶ 33 (citing Aug. 31, 2016
Letter, Brown Decl. II, Ex. A). Ms. Brown made certain
redactions to the records she sent to Plaintiffs.
Specifically, she redacted “the names and identifying
details of individuals (Rating Veteran Service
Representatives (RVSRs)) working as decision makers on
specific tasks, work that may be considered contentious to
those associated with the subject matter.” Id.
at ¶ 34. VBA also redacted the email addresses and phone
numbers of employees. Id. In its cover letter to
Plaintiffs, VBA cited Exemption 6 of the FOIA statute.
Brown also “submitted an inquiry to Mr. Brad Flohr,
” Senior Advisor to the Compensation Service at VBA.
Opp. Mem., 41. Ms. Brown explained that she “wanted to
meet with a subject matter expert for the Camp Lejeune to
discuss [Plaintiffs'] FOIA request in detail.”
Brown Decl. I ¶ 6. Mr. Flohr helped her determine how to
divide the FOIA request between VHA and VBA. Id. Mr.
Flohr also serves as VBA representative on a community
committee concerning the SME program. Opp. Mem., 8.